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Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924022873966 
 
PRICE, $t.00 PER COPY 
 
 A DIGEST 
 
 OF THE 
 
 LIQUO^R TAX LAW 
 
 I OF THE 
 
 ISTATE OF NEW YORK 
 
 OOllklELLOmViRSlTli 
 
 MAY 17 1912 
 
 L ^LW LIBRAR¥lREPABiED and published J 
 
 BY 
 
 H. WALTER LEE 
 
 (Former Chief Counsel State Department of Excise) 
 
 82 STATE STREET, : : ALBANY,fiN. Y. 
 
 AUGUST 15/1911 
 
 ALBANTJ 
 
 J.|B.;LT0N company, PKINTBRS I 
 
 1911 
 
 COPTRIOHT 1911, H. Walter Lbe 
 
A STATEMENT BY FORMER STATE EXCISE COM- 
 MISSIONER CLEMEHT. 
 
 I ta^e carefully examined the Digest of tHe Liquor Tax Law 
 prepared by H. Walter Lee and uixhesitatingly reoommend its 
 piirchase and study by every holder of a liquor tax certifioialte iu 
 the State of New York and by every person interested in the - 
 liquor traffic. 
 
 . During my- term of office as.-"State Coirunissiioner of Exois^y all 
 department opinions construing the various pe-oyisions' of the JjHWj 
 were prepared or approved by him, either as Law Deputy or later 
 as^Ghief Ooimsel, and I know of no one raore familiar with the 
 subject than Mr. Lee/, or better qualified to prepare a work so 
 important to, the liquor trade as I regard this. Digest. 
 
 The style is lucid and terse aid brings the somewhat^oonaplicated.^^ 
 provisions of tbe statute within, the easy underslanduig: of the 
 non-professional mind. / , 
 
 MAYM'ArEP K 0LEM'E3n1:T, 
 
 Comrrjbissioner frovfb 1-906^0 1911. 
 •^Dated, August 15, 1911. 
 
A DIGEST 
 
 OF THE 
 
 LIQUOR TAX LAW 
 
 OF THE 
 
 STATE OF NEW YORK 
 
 PREPARED AND PUBLISHED 
 BY 
 
 HrwXLTER LEE 
 
 (Former Chief Counsel State Department of Excise) 
 
 82 STATE STREET, : : ALBANY, N. Y. 
 
 AUGUST 15, t9It 
 
 ALBANY 
 
 J. B. LYON COMPANY, PETNTBRS 
 
 1911 
 
/3 ^/^ 
 
 Explanation o'b Teems and Abbeeviations Used in This 
 
 Digest. 
 
 Wherever the single word " Law " is used, commencing with 
 a capital, reference is had to the Liquor Tax Law of the State 
 of New York, being chapter 39 of the Laws of 1909, constituting 
 Chapter 34 of the Consolidated Laws. 
 
 Section references are always to sections of the Liquor Tax 
 Law. 
 
 The abbreviation " App. Div." means Appellate Division 
 Eeports. 
 
 The abbreviation " N. T." in connection with the citation of 
 a case, means the New York Court of Appeals Eeports. 
 
 The abbreviation " N. Y. Supp." means the New York Supple- 
 ment Eeports. 
 
™NSLLDNIVgH8iri 
 LAW IIERARY. 
 
 PREFACE 
 
 The Liquor Tax Law of the State of New York contains many 
 involved and complex provisions. Only a few of them, compara- 
 tively, have been construed by the courts. Thousands of written 
 opinions have been issued by the State Department of Excise cover- 
 ing a great number of questions that have arisen under the stat- 
 ute, but these opinions have not been published and are not readily 
 accessible, for they are in the nature of replies to individual in- 
 quirira received from private citizens and public officers every- 
 where throughout the State, and extend over a long period. of years. 
 
 The author of this Digest was Second Deputy State Commis- 
 sioner of Excise during four years, and chief counsel of the legal 
 bureau during the last year, of the administration of Maynard N. 
 Clement, whose term of office as State Commissioner of Excise 
 expired on the 1st day of April, 1911. 
 
 The purpose of this Digest is to explain as concisely as possible 
 the important provisions of the Liquor Tax Law to the end that 
 ■all men who are interested in one of the most important statutes 
 of the State may have a clearer knowledge of its scope, meaning 
 and intent. 
 
 This Digest is founded upon the decisions of the courts, the 
 rulings of the State Department of Excise since its establishment 
 in 1896, and a special study of the statute covering several years. 
 
 [iii] 
 
DIGEST OF THE LIQUOR TAX LAW. 
 
 CHAPTER I. 
 
 The Character and Scope of the Liquor Tax Law. 
 
 The Court of Appeals has held that the Liquor Tax Law is not, 
 in character, a tax law, but a law enacted under the police power. 
 (People ex rel. Einsfeld v. Murray, 149 JST. Y. 367.) It is a law 
 enacted for the purpose of controlling, restricting and regulating 
 the liquor traffic. 
 
 A liquor tax oertiiicate is not a contract. The State, through 
 its Legislature and its administrative officers, does not have the 
 power to enter into a valid and binding contract that hampers 
 the future action of the State in the exercise of its police power 
 to regulate and restrict the liquor traffic. And this is so upon 
 the theory that the State cannot barter away or in any manner 
 abridge any of those inherent powers of government, the com- 
 plete and untrammeled exercise of which is essential to the wel- 
 fare of organized society. (Kresser v. Lyman, 74 Fed. Eep. 765.) 
 A liquor tax certificate is merely a receipt showing that the 
 holder thereof has paid the required tax assessed upon a 
 particular grade of traffic. The right to traffic is derivable, not 
 from the certificate, but from the statute, and the statute may be 
 amended at any time. This fact should be borne in mind by 
 persons engaged in the liquor traffic, because, otherwise, they are 
 apt to misapprehend their rights. 
 
 For instance — many liquor dealers last year were of the 
 opinion that the law regulating the liquor traffic could not be 
 changed during the certificate year so as to abridge the privileges 
 they enjoyed at the time they procured their certificates. It 
 should be remembered that no miatter what may be the restrictions 
 and limitations imposed upon the traffic when a certificate is pro- 
 cured, such restrictions and limitations may, nevertheless, there^ 
 after and during the life of the certificate be changed, restricted 
 
2 Digest of the 
 
 or enlarged, and that every one immediately becomeis bound 
 thereby. To illustrate : On June 14, 1910, the Law was amended, 
 changing the opening hour for traffic in liquors from five to six 
 o'clock in the morning. This amendment went into effect im- 
 mediately, and affected traffic in liquors everywhere throughout 
 the State; and it at once became unlawful to traffic in liquors be- 
 fore six o'clock in the morning, notwithstanding the fact th'at 
 when the certificates then in force were issued, it was lawful to 
 traffic in liquors before six o'clock, viz., after five o'clock in the 
 morning. 
 
 Under the Excise Law in force immediately prior to the 
 23d day of March, 1896, when the present statute went into 
 effect, local boards of excise were required to investigate and 
 determine as to the fitness of man and place and the needs of the 
 particular locality, before issuing a license for the sale of liquors. 
 Under this system, men engaged in the liquor business were at 
 the mercy of the officials in whom the licensing power was vested, 
 and the right of these officials to exercise discretion led to many 
 and great abuses. 
 
 The present statute is intended to, and does, do away with the 
 exercise of any discretion on the part of officials charged with the 
 duty of issuing what are now called liquor tax certificates. Any 
 person, unless expressly prohibited by the statute, can procure a 
 certificate without fear or favor, by complying with the require- 
 ments of the Law. 
 
 County treasurers and Special Deputy Commissioners of Excise 
 are often unjustly criticised for issuing certificates in cases where, 
 it is alleged, sufficient consents have not been obtained. It must 
 be remembered that, with certain express exceptions, hereafter 
 noted in Chapter IX, certificate issuing officers cannot, under the 
 present statute, examine into the truth of any statement made by 
 an applicant for a liquor tax certificate; but, for the purpose of 
 issuing the certificate, must accept as true each and every state- 
 ment contained in the application. (People ex rel. Bel den Club v. 
 Ililliard, 28 App. Div. 140.) If, for instance, the applicant has 
 not, as a matter of fact, obtained and filed the required consents 
 of dwelling-owners, the certificate must, nevertheless, be issued 
 if the applicant states under oath (as he is required to do) that 
 
LiQUOE Tax Laav. 3 
 
 he has obtained and filed the consents required by the statute .and 
 such statem<?nt appears, on the face of the papers, to be correct. 
 
 If an applicant should state that there were only six dwellings 
 within the* statutory radius of his place of traffic, whereas there 
 were, in fact, ten dwellings, and the certificate issuing ofiicer knew 
 there were ten dwellings, he would be required, nevertheless, to 
 accept the applicant's statement as true for the purpose of issuing 
 the certificate. 
 
 It is not the duty of a county treasurer or Special Deputy Com- 
 missioner, nor has he any power or authority, to investigate how 
 many dwellings there are within the statutory radius of the pro- 
 posed place of traffic, l^either has he any right to determine 
 whether a consent given by a dwelling-owner and duly presented 
 to him, has been revoked. If, before the certificate is issued, a 
 dwelling-owner whose consent is material legally revokes his con- 
 sent and gives written notice thereof to the applicant and also to 
 the certificate issuing officer, the applicant does not, by having the 
 certificate issued to him, thereby acquire any right to traffic there- 
 under, but that fact would not justify the county treasurer or 
 Special Deputy Commissioner in refusing to issue the certificate, 
 because such officer is. required to act solely upon the papers filed 
 hy the applicant. The statute makes him a ministerial officer 
 only, in the performance of his duties under the Liquor Tax Law. 
 
 The remedy afforded the citizens of any locality in a case where 
 it is claimed that an applicant for a certificate has made any false 
 statement in his application, or has not obtained the required 
 number of consents, etc., is not to be found in a preliminary 
 hearing to prevent the issuance of the certificate, but lies in the 
 prosecution of a proceeding to cancel and revoke the certificate 
 after it has been issued. (Sub. 2, § 28.) 
 
 It is in this way that every person stands equal before the law, 
 for upon no pretext whatever can a certificate issuing officer 
 legally refuse to issue a certificate to any person who makes appli- 
 cation therefor in due form. Except as set forth in Chapter IX 
 such officer must issue a certificate to any and every applicant 
 who presents an application statement which, on its face, is cor- 
 rect in form and substance, and i's accompanied by a proper bond 
 and a tender of the required tax. 
 
4 Digest of the 
 
 If any applicant makes a matei-ial false statememt, or procures 
 a certificate upon insufficient consents, etc., fie does so at fiis own 
 peril, and all who thus violate the Law are subject to the same 
 severe penalties. 
 
 CHAPTER II. 
 
 What are Liquors. 
 
 The word '' liquors " is defined in the Law as meaning and 
 including " all distilled or rectified spirits, wine, fermented and 
 malt liquors." (§2.) 
 
 The courts will take judicial notice that certain beverages are 
 liquors, and no proof will be required as to their ingredients. 
 Such, for instance, are whiskey, gin, alcohol, ale, lager beer, etj. 
 (Matter of Cullinan v. McGovern, 94 N. Y. Supp. 525 ; People 
 V. ]\Iarx, 128 App. Div. 828; People ex rel. Lance v. O'Eeilly, 
 129 App. Div. 522; affirmed 194 N. Y. 592.) 
 
 In the last case cited above, the court said : " Lager beer 
 seems to be, in the United States, at least, an unequivocal term and 
 is not misunderstood. It stands everywhere for a specific, 
 definite article of manufacture, and is a fermented and malt 
 liquor as much as whiskey is a distilled liquor. We think the 
 courts generally should take judicial notice of the fact, and that 
 the magistrate whose decisiou is under review was justified in 
 doing so, and that he acted with jurisdiction in issuing the com- 
 mitment under which the relator was held in custody. This 
 view makes it unnecessary to discuss the question whether or not, 
 in the record before the magistrate, there was specific evidence 
 that lager beer is a fermented or malt liquor." 
 
 In People v. Marx (supra), the testimony against the defend- 
 ant was that of two police officers who visited his saloon in citi- 
 zens' clothes on Sunday. One of them testified that he ordered 
 a drink of whiskey of the defendant, that the defendant served 
 the same to him from his bar, that he dranki it and that it was 
 whiskey. He was cross-examined as an expert and because he 
 could not tell the component parts of whiskey, or whether thu 
 liquor served to him was a distilled or rectified spirit, or whether 
 there are " many medicines " that smell like whiskey, the court 
 
Liquor Tax Law. 5 
 
 was asked to hold that he was not competent to know whiskey 
 when he drank it, and this although he said he had been drinking 
 whiskey for thirty years. The court said: "This is an old 
 story, and it were well if the courts heard it for the last time. 
 Counsel for the defendant fails even to perceive that the fact that 
 in answer to an order for whiskey the defendant produced u 
 liquid to fill the order, was evidence that it was whiskey." 
 
 There are certain beverages, other than whiskey, gin, alcohol, 
 ale, lager beer, etc., that are liquors, but the courts will not take 
 judicial notice of the fact, but will require proof of their in- 
 gredients. This proof is made ordinarily by chemical analysi-. 
 
 The word " intoxicating " is not used in the present statute, 
 and it is not necessary to prove that a beverage is intoxicating 
 in order to establish the fact that it is a liquor within the mean- 
 ing of the Law. (People v. Cox, 106 App. Div. 299 ; People v. 
 Foster, 127 App. Div. 945, no opinion ; affirmed, without opinion, 
 198 'N. Y. 544.) 
 
 There is no prescribed percentage of alcohol required to con- 
 stitute a beverage a liquor. In several cases a very sm'all per- 
 centage of alcohol has been found to be sufficient. In the case 
 of People V. Cox (supra), it was held that a preparation known 
 as " Malt Rose " was a liquor, although it contained only between 
 74-100 of 1 per cent, and 1 and 18-100 per cent., in volume, 
 of alcohol. 
 
 In fact the amount of alcohol originally placed in the con- 
 coction amounted to but 11-100 of 1 per cent., the remaining 
 percentage being caused by fermentation after the beverage was 
 bottled. It was held that the sale of this beverage in a "no 
 license " town was a misdemeanor, and the defendant was con- 
 victed. 
 
 Every fluid containing alcohol is not a liquor. There are 
 certain extracts, drugs, essences and tinctures containing a large 
 percentage of alcohol that are recognized as medicinal substances 
 by the United States Dispensatory and our National Pharma- 
 copceia, and which are not liquors within the meaning of the 
 statute ; such, for instance, as spirits of camphor, spirits of nitre, 
 etc. Such extracts, drugs, essences and tinctures may be legally 
 sold anywhere in the State without a liquor tax certificate. 
 
G Digest of 'the 
 
 On the other hand there are many compounds of alcohol with 
 other ingredients, whether provided for a single case or com- 
 pounded upon a formula and sold under specified names, such as 
 bitters, cordials, tonics, etc., that are liquors within the meaning 
 of the Law. (People v. Seeley, 105 App. Div. 149; affirmed 183 
 N. Y. 544.) 
 
 Various so-called proprietary or patent medicines containing 
 alcohol have been held by the courts to be liquors, notwithstanding 
 the fact that they were advertised solely as medicines. (CuUinan 
 V. Paxson, 100 App. Div. 515; Clement v. Dwight, 137 App. 
 Div. 389.) 
 
 In the case of United States v. Morfew, 136 Fed. Rep. 491, 
 the court said : " The fact that there are labels on the bottles, or 
 that it is called a medicine, or medicinal preparation, does not 
 make it so. A great many regard all whiskeys 'as possesising 
 medicinal virtues, and no doubt there are some diseases which, 
 by a prompt use of whiskey, I mean plain whiskey, may be, if 
 not cured, at least temporarily relieved ; but that fact alone does 
 not authorize dealers, whether druggists or others, to sell them 
 without paying the special tax required by law. * * *. The 
 law does not tolerate subterfuges and merely disguising whiskey 
 or distilled spirits by aromatic or other drugs or putting some 
 herbs or roots in them to serve as a substitute for whiskey, is 
 not to be tolerated." 
 
 The question is often asked, " How shall a druggist know what 
 preparations and concoctions are, and what are not, liquors 
 within the meaning of the statute ? " 
 
 Whether any particular preparation is a liquor within the 
 meaning of the statute is a question of fact that is usually de- 
 termined by an analysis of the ingredients of the preparation. 
 It must necessarily follow that a druggist who holds a subdivision 
 3 certificate and who sells, vnthout a physician's prescription, 
 any preparation containing alcohol mixed with other ingredients 
 (unless such preparation is a recognized medicinal substance as 
 aforesaid) does so at his own risk, and must suffer the conse- 
 quences if he is prosecuted and it is shown by chemical analysis 
 that the preparation sold by him was a liqnor within the meaning 
 and intent of the Law. 
 
Liquor Tax Law. 7 
 
 A druggist in a town where all four of the local option ques- 
 tions have been carried in the negative, not only has no right to 
 sell, with or without a physician's prescription, recognized 
 liquors, such as whiskey, gin, wine, alcohol, etc., but he has no 
 right to sell any icompound of liquors mixed with other in- 
 gredients, provided the resultant preparation falls within the 
 definition of the word " liquors " as laid down in the Law and as 
 construed by the courts. 
 
 The test is whether or not the compound or preparation in the 
 form in which it is sold to the customer is a liquor. 
 
 If it is, neither a druggist, nor any one else, has a right to sell 
 it, for any purpose whatsoever, in a town where all four questions 
 have been carried in the negative, nor has a druggist holding a 
 subdivision 3 certificate in a town where such traffic is lawful the 
 right to sell it except upon the written prescription of a duly 
 licensed physician. 
 
 There is one, and only one, exception to the foregoing state- 
 ment that no person has a right to sell any kind of liquor for 
 any purpose whatsoever, in a town where all four questions have 
 been carried in the negative, and that exception is as follows: 
 A grower of fruit or a manufacturer of any liquor produced 
 solely from fruit, in such a town, may sell such, liquor in such 
 town, but only for delivery outside of such town, in quantities 
 of two wine gallons or more, provided he has paid the required 
 tax and procured a subdivision 7 certificate. 
 
 Sweet cider is not a liquor, but " hard " cider, or cider that 
 has commenced to ferment, is a liquor within the meaning and 
 intent of the Law. 
 
 CHAPTER III. 
 What Constitutes Trafficking in Liquors. 
 
 The Liquor Tax Law regulates and controls, and provides for 
 the assessment of taxes upon, what is known as "trafficking in 
 liquors," and it is therefore necessary to understand clearly just 
 what this term means, for if a sale of liquors is made in such 
 a quantity, and under such circumstances as not to constitute 
 " trafficking in liquors," it is not subject to taxation under the 
 State law. 
 
8 Digest of the 
 
 The term " trafficking in liquors " includes every sale of liquors 
 in a quantity less than five wine gallons at a time. It also includes 
 a sale of liquors in a quantity of five wine gallons, or more at a 
 time, if less than five gallons of any one kind and quality is in- 
 cluded in the sale, or if a portion of the liquor is intended or 
 permitted to be drunk on the premises where sold, or if the 
 liquor sold is delivered or agreed to be delivered in a less quantity 
 than five wine gallons at a time. The term also' includes " the 
 distribution of liquor by, between or on behalf of members of a 
 corporation, association or co-partnership to a member thereof, or 
 to others in quantities less than five wine gallons." (§2.) 
 
 It will be seen, therefore, that every sale of liquors made in a 
 quantity of less than five wine gallons is subject to taxation under 
 the State law, whereas the sale of one kind and quality of liquor 
 in a quantity of five wine gallons or more at a time, no portion of 
 which is to be drunk on the premises where sold or to' be delivered 
 in a less quantity than five wine gallons, is not subject to taxation 
 under the State law, and can be made free from its restrictions 
 and limitations and in the same manner as any other commodity, 
 except that it cannot be made in what is known as a " no liteense " 
 town, or in a town where subdivision 3 traffic only, is permis- 
 sible. The sale of liquor in any quantity whatsoever is prohibited 
 in such a town with the single exception that a fruitgrower or 
 manufacturer of liquor produced solely from fruits, may, if he is 
 the lawful holder of a subdivision Y certificate, sell such liquor 
 produced solely from fruits, in such a town, btit only for delivery 
 outside of such town, unless the sale is made to the holder of 
 a subdivision 3 certificate in such town. (Clause J, § 30.) 
 Of course the sale of liquor in a quantity of five wine gallons, 
 or more or less, at a time is subject to the Federal laws, 
 and the regulations of the United States Internal Eevenue De- 
 partment. For instance: The holder of a subdivision 1 or 2 
 liquor tax certificate who has also paid the required United States 
 internal revenue tax and complied with the regulations of the 
 Internal Eevenue Departmeat, may sell any kind of liquor in any 
 quantity whatsoever— a gill, a quart, a gallon or a barrel at a 
 time as above stated. The tax he pays under the State law is 
 for the privilege of selling liquors in a quantity of less than five 
 wine gallons at a time, there being no tax whatever imposed 
 
Liquor Tax Law. 9 
 
 under the State law upon the sale of liquors' in a quantity of five 
 wine gallons or more at a time, unless the sale is made in such a 
 manner as to constitute " trafficking in liquors " as above defined. 
 
 So far as the State law is concerned, it has nothing to do with 
 the sale of liquor in a quantity of five win© gallons or more at a 
 time except as it forbids such a sale in a " no license " town, 
 and in a town where subdivision 3 traffic only, is permissible. 
 A person may sell liquors in a " license town " without paying 
 any State tax provided each sale is in a quantity of five wine gal- 
 lons or more of one kind of liquor only, and no part of it is to^ be 
 drunk on the premises where sold or to be delivered in a less 
 quantity than five wine gallons. This is so because such a sale 
 does not come within the definition of the term " trafficking in 
 liquors " as set forth in the Liquor Tax Law, but such a sal© could 
 not legally be made without first complying with all the regula- 
 tions of the United States Internal Revenue Department. 
 
 Clubs or societies that desire to sell or distribute liquors to 
 their members are required to pay a tax and conform to all re- 
 quirements of the statute in the same manner as if they were 
 individuals. (§ 2.) 
 
 A club or association that Was organized in good faith under 
 certain laws providing for the organization of associations and 
 clubs for social", recreative or similar purposes may, if it is the 
 holder of a proper liquor tax certificate, sell liquors on Sunday 
 and at all hours on week days to its members, provided such club 
 or association trafficked in or distributed liquor among its mem- 
 bers on the 23d day of March, 1896, and was actually, lawfully 
 organized, and if a corporation its certificate of incorporation duly 
 filed, prior to said date. (Clause O, § 30.) 
 
 If a club or association was not so organized and so trafficking, 
 it has no right to sell or distribute liquors to its members on 
 Sunday or during prohibited hours on week days, notwithstanding 
 the fact that it has paid the required tax and procured a proper 
 certificate for traffic in liquors with its members. 
 
 It is not the intention of the statute to require a person to pro- 
 cure a certificate in order to entitle him to serve liquors in his 
 family, or to his guests as an act of hospitality. The intent is 
 to regulate sales of liquors for profit and to impose a tax thereon, 
 and also upon the distribution or giving away of liquors by any 
 
10 Digest of the 
 
 person under such circumstances as would constitute an evasion 
 of the provisions of the statute concerning sales. 
 
 CHAPTER IV. 
 
 The Various Grades of Traffic and the Taxes Assessed Thereon. 
 Enumeration to Determine Tax. 
 
 There are seven grades of traffic in liquors, upon each of v?hich 
 a different tax is assessed as follovrs: 
 
 1. Traffic in liquors to be drunk on the premises vi^here sold. 
 (Subdivision 1 certificates.) This includes hotels, saloons, 
 restaurants, cafes, booths, etc. The annual tax upon this 
 form of traffic is $1,200' in a city ot borough having a 
 population of 1,500,000 (ISTew York and Brooklyn only) ; 
 $975 in a city or borough having a population of less 
 than 1,500,000 but more than 500,000 (originally Brooklyn — 
 now there is no such city in the State) ; $750 in a city or 
 borough having less than 500,000 population but more than 
 50,000; $525 in a city or village having a population of 
 less than 50,000 but more than 10,000 ; $450 in a city or 
 village having a population of less than 10,000 but more than 
 5,000 ; $300 in a village having a population of less than 5,000 
 but more than 1,200'; and $150 in any other place. A person who 
 holds a certificate for this grade of traffic has a right to sell 
 liquors not only to be drunk on the premises where sold, but also 
 to be drunk away from the premises, unless the place of traffic is 
 in a town where traffic in liquors not to be drunk on the premises 
 where sold (subdivision 2), is prohibited as the result of the 
 local option vote. (Sub. 1, § 8.) 
 
 2. Traffic in liquors, no part of which is to be drunk on the 
 premises where sold. (Subdivision 2 certificates.) The annual 
 tax upon this form of traffic is $750 in a city or borough having 
 a population of 1,500,000 or more (New York and Brooklyn 
 only) ; $600 in a city or borough having a population of less than 
 1 ,500,000 but more than 500,000 (originally Brooklyn) ; $450 
 in a city having a population of less than 500,000 but more than 
 50,000 ; $300 in a city or village having a population of less than 
 50,000 but more than 10,000; $150 in a city or village having 
 
Liquor Tax Law. , 11 
 
 a population of leas than 10',000 but more than 5,000; $112.50 in 
 a village having a population of less than 5,000 but more than 
 1,200; and $75 in any other place. (Sub. 2, § 8.) 
 
 3. Traffic in liquors by a duly licensed pharmacist upon the 
 written prescription of a regularly licensed physician, etc. 
 Subdivision 3, or pharmacists' certificates.) The annual tax 
 upon this form of traffic is $7.50 per year everywhere throughout 
 the State. A person who holds a certificate of this grade may 
 also sell alcohol to be used for medicinal or mechanical purposes 
 without a physician's prescription, except during prohibited 
 hours. (Sub. 3, § 8.) 
 
 4. Traffic in liquors upon a car, steamboat or vessel within 
 this State with passengei's in actual transit only. (Subdivision 
 4 certificates.) The annual tax upon this form of traffic is 
 $300 per year, everywhere in the State. These certificates are 
 issued only by the State Commissioner of Excise. (Sub. 4, 
 §§ 8 and 17.) 
 
 5. Traffic in liquors from a vehicle or wagon. (Subdivision 
 5, or vehicle certificates.) In order to procure this kind of 
 certificate, the applicant must already be either (1) the holder 
 of a subdivision 2 certificate or (2) the holder of a subdi- 
 vision 1 certificate under which he has the right to sell liquors, 
 not only to be drunk on the premises where sold, but also to be 
 drunk away from the premises. Under a wagon or vehicle certifi- 
 cate (so-called) the holder thereof has a right to sell and deliver 
 from the wagon or vehicle malt liquors in bottles in a quantity 
 of not less -than three gallons at a time. This kind of certificate 
 is intended for persons who are engaged in the business of bottling 
 malt liquors and who desire to sell liquors away from their stores 
 or saloons through the medium of wagons or vehicles. The an- 
 nual tax upon this form of traffic is $15'0 for each vehicle or 
 wagon; These certificates are issued only by the State Commis- 
 sioner of Excise. (Sub. 5 of § 8 and §! 17.) 
 
 6. Traffic in alcohol only. (Subdivision 6 certificates.) A 
 person who holds a certificate of this grade has the right to sell 
 alcohol between the hours of seven o'clock in the morning and 
 seven o'clock in the evening only, on any day except Sunday, for 
 use for mechanical, medicinal or scientific purposes, and the 
 
12 Digest of the 
 
 holder of such certificate can neither keep nor sell liquors of any 
 kind other than alcohol. The annual tax upon this form of traffic 
 is $3i7.50 in a city having a population of 1,500,000 or more 
 (New York and Brooklyn) ; $30 in a city having a population 
 ijf less than 1,500,000 but more than 500,000 (originally 
 Brooklyn) ; $22.50 in a city having a population of less than 
 500,000 but more than 50,000 ; $15 in a city or village having a 
 population of less than 50,000 but more than 10,000; and $7.50 
 in any other place. (Sub. 6, § 8.) 
 
 7. Traffic in liquors produced solely from fruits by a fruit- 
 grower or by a manufacturer of liquors produced solely from 
 fruits. (Subdivision 7, or fruitgrowers' certificates.) The tax 
 upon this form of traffic is $75 everywhere in the State for a 
 full excise year or any part thereof. 
 
 The holder of such a certificate may sell such liquors in a 
 quantity of not less than two wine gallons at a time between the 
 hours of seven o'clock in the morning and seven o'clock in the 
 evening on any day except Sunday. No part of the liquors sold 
 to be drunk on the premises where sold, or in any outbuilding, 
 yard, booth or garden appertaining thereto or connected there- 
 with. (Sub. 7,'§ 8.) 
 
 In addition to the various certificates above enumerated an! 
 described, there is also issued what is known as a " special all 
 night certificate." This certificate is issued only in cities and 
 may be procured as follows: The applicant must be the holder 
 of a subdivision 1 certificate and must first procure the con- 
 sent of the mayor of the city in which his place of business is 
 located. This consent may be given for one or more particular 
 nights or for oiie, two or more months, or for an indefinite term, 
 and the consent may be revoked at any time by the mayor without 
 notice and the revocation of the consent terminates the right to 
 traffic under the all night certificate. Upon the presentation to 
 the State Commissioner of Excise of the mayor's consent, to- 
 gether with an application statement on the form prepared by the 
 State Commissioner of Excise and the payment of the tax, an 
 all night certificate will be issued by the State Commissioner for 
 some particular night or nights, or for a week or month, etc., as 
 the case may be. The tax is $10 for each single night. 
 
'■ Liquor Tax Law. 13 
 
 " or at the rate of $25 for the period from one o'clock in the 
 morning on Tuesday in cities of the first and second class, and 
 fi'om twelve o'clock midnight Monday in cities of the third class, 
 to and including not later than midnight on Saturday of each 
 week." This form of certificate permits traffic during all hours 
 of the night on week days as above specified. (Clause 0, § 30.) 
 
 Enumeration. 
 
 Excise taxes are based upon the population of a city or village 
 as such population is shown by the latest State enumeration or 
 United States census. If there is a United States census later 
 than a State enumeration, the United States census controls, and 
 vice versa. If the population cannot be determined by the State 
 enumeration or United States census in a case where there has 
 been a change in boundaries, or a new city or village has been in- 
 corporated, the State Commissioner of Excise is empowered in 
 his discretion to cause an enumeration of the inhabitants to be 
 taken in such city or village. 
 
 He may also cause to be taken an enumeration of , the in- 
 habitants of any hamlet or unincorporated village after first hav- 
 ing established - a limit or boundary line around such hamlet or 
 unincorporated village within which limit or boundary line the 
 enumeration shall be taken. When the limit or boundary line is 
 thus established, it shall not be changed for a period of five years 
 after the date of recording the same, unless such hamlet or un- 
 incorporated village becomes an incorporated village with differ- 
 ent corporate boundaries. 
 
 Excise taxes in the city of Greater New York are assessed in 
 the several boroughs or portions of the territory that were con- 
 solidated to form such city, at an advance of one-half in the rate 
 over the amount at which such taxes were ^assessed in the several 
 portions of the territory so consolidated on December 31, 1902. 
 
 Separate Certificate eor Each Additional Bar, Room or 
 
 Place. 
 If there be more than one bar, room or place on the premises, 
 car or boat, at which the traffic in liquors is carried on, an addi- 
 
14 Digest of the 
 
 tional tax is assessed for each such additional bar, room or place, 
 equal in amount to the original tax paid. 
 
 CHAPTER V. 
 Local Option. 
 
 Local option exists only in towns. (§ 13.) The right to vote 
 upon the local option questions does not exist in cities or in 
 villages separate from tov^ns. 
 
 The Law provides that in order to ascertain the will of the 
 qualified ©lectors of any town in the State, four local option ques- 
 tions, hereinafter set forth, shall be submitted at any regular bi- 
 ennial town meeting, provided a sufficient number of electors re- 
 quest such submission in due form. 
 
 The first step to be taken is the preparation of a written peti- 
 tion addressed to the town clerk of the town, requesting that such 
 questions be submitted at the next biennial town meeting. This 
 petition must be signed and acknowledged by duly qualified elect- 
 ors of the town to the number of 10 per cent, of the votes cast 
 at the last preceding general election. The Law does not require 
 the petition to be in any particular form. Every elector who 
 signs the petition must appear personally before a notary public 
 or other ofiicer authorized to take acknowledgments, and duly 
 acknowledge that he executed the petition. 
 
 Two or more petitions may be circulated at the same time, but 
 it is advisable to attach them together and present them as one 
 petition to the town clerk. The petition must be filed with the 
 town clerk not less than twenty days before the town meeting. 
 
 The petition may be in the following form — the blank spaces 
 being properly filled in : 
 
 PETITION. 
 "To , clerk of the town of 
 
 We, the undersigned, duly qualified electors of the town 
 
 of , do hereby request the submission of the local 
 
 option questions, pursuant to the provisions of section 13 
 of the Liquor Tax Law, to the electors of said town at the next 
 
Liquor Tax Law. 15 
 
 biennial town meeting to be beld in and for said town on 
 tbe day of , 19 . . . 
 
 (Here sbould follow a large enough space for tbe signatures of 
 qualified electors or voters to tbe number of 10 per cent, of the 
 votes cast at the last preceding general election.) 
 
 STATE OF NEW YOEK, ^ 
 
 County of , yss.: 
 
 Town of , \ 
 
 On this day of , 19 . . , before me, 
 
 the subscriber, personally appeared {here must he inserted the 
 names of the persons who personally appeared before the notary 
 or other proper officer) to me known, and known to me, to be the 
 same persons described in and who executed the foregoing instru- 
 ment, and they duly and severally acknowledged to me that they 
 executed the same. 
 
 [Name of notary or other proper officer.] 
 
 [Title of office.}" 
 
 There may be one or more certificates of acknowledgment on a 
 petition. Each notary or other proper ofiicer must fill out an 
 acknowledgment in the form above set forth with reference to 
 those persons who personally appeared before him, and duly 
 acknowledged that they executed the petition. 
 
 A petition for the submission of one or two or three of the 
 local option questions is unauthorized. The statute contemplates 
 and requires the submission of all the four propositions provided 
 for in section 13 whenever such questions are to be voted upon 
 by the electors of a town. (Matter of Getman, 28 Misc. 451.) 
 
 The Legislature intended to require a certificate of acknowl- 
 edgment to be in the form necessary to prove a conveyance of 
 real property, in order that there might be proof that the signa- 
 tures to the petition are genuine. Thus an acknowledgment " sub- 
 scribed and sworn to," before a notary public on a specified day 
 
16 I)mrsT OF the 
 
 is improper (Kennedy v. Warner, 51 Misc. 362), as it is not in 
 the form required by the statute — so also is an acknowledgment 
 " signed " and not " acknowledged." (Jackson v. Seeber, 50 
 Misc. 479.) 
 
 The itown clerk shall, within five days from the filing of the 
 petition in his office, prepare and file in the office of the county 
 clerk of the county a certified copy of the petition, provided the 
 town meeting at which the local option questions are to be sub- 
 mitted is to be held at the time of the general election. It is 
 probable however that the failure of the clerk to file such certified 
 copy with the county clerk would have no effect upon the vote, 
 unless it was the duty of the county clerk to furnish the local 
 option ballots. (Matter of Eiee, 95 App. Div. 28.) In nearly 
 every county in the State, it is the duty of town clerks to prepare 
 and furnish the local option ballots. 
 
 It is absolutely necessary, in every case, for the town clerk to 
 cause to be printed and posted in at least four public places in 
 the town, and at least ten days before the town meeting or general 
 election (if the town meeting is held at the same time as the 
 general election), a notice of the fact that the local option ques- 
 tions will be voted on at the town meeting or general election. 
 
 The Law does not require that this notice be in any particular 
 form. It is the intention that such public notice shall be given 
 the electors of the town as will permit them to know what they 
 are to vote upon. The following form of notice would be suf- 
 ficient — : the blank spaces being properly filled out : 
 
 NOTICE. 
 
 " To the electors of the town of Yon 
 
 will hereby take notice that at the next biennial town meeting 
 
 to be held in and for the town of on 
 
 the day of , 19 . ., the local option 
 
 questions provided for in section 13 of the Liquor Tax Law will 
 be voted on. Such questions are as follows : 
 
 (Here set forth the four questions as they are to appear on 
 the ballots.) 
 
 Dated , 19. . 
 
 , , , . . (Town Clerh.y 
 
LiQuoE Tax Law. 17 
 
 It is also necessary in every ease for the said notice not only 
 to be printed and posted as aforesaid, but also to be published 
 at least five days before the vote is to be taken, once in one 
 newspaper published in the county in which the town is situate, 
 which shall be a newspaper published in the town, if there be one. 
 
 The statute is mandatory with reference to the posting and 
 publishing of the notice by the town clerk, and the failure of the 
 town clerk to either post or publish will necessitate a resubmission 
 of the local option questions at a special town meeting. (Matter 
 of Town of Livingston, 189 N. Y. 549, affirming 120 App. Div, 
 899.) 
 
 It is the duty of the town clerk to prepare the local option bal- 
 lots unless there is a law applicable to his particular county, by 
 virtue of which such duty is imposed upon the county clerk. 
 
 The local option questions must be in the following form : 
 
 Question 1. Selling liquor to be drunk on the premises where 
 sold. Shall any person be authorized to traffic in liquors under 
 the provisions of subdivision one of section eight of the liquor tax 
 law, namely, by selling liquor to be drunk on the premises where 
 sold, in (here insert the name of the town) ? 
 
 Question 2. Selling liquor not to be drunk on the premises 
 where sold. Shall any person be authorized to traffic in liquors 
 under the provisions of subdivision two of section eight of the 
 liquor tax law, namely, by selling liquor not to be drunk on the 
 premises where sold, in (here insert the name of the town) ? 
 
 Question 3. Selling liquor as a pharmacist on a physician's 
 prescription. Shall any person be authorized to traffic in liquors 
 under the provisions of subdivision three of section eight of the 
 liquor tax law, namely, by selling liquor as a pharmacist on a 
 physician's prescription, in {here insert the name of the town) ? 
 
 Question 4. Selling liquor by hotelkeepers only. Shall any 
 person be authorized to traffic in liquors under subdivision one of 
 section eight of the liquor tax law, but only in connection with 
 the business of keeping a hotel, in (here insert the name of the 
 town), if the majority of the votes cast on the first question sub- 
 mitted are in the negative ? 
 
 It is essential that the local option questions be in the form 
 above set forth, and great care should be taken to see that they 
 are in this form. 
 
18 Digest op the 
 
 Any person qualified to vote for town, county or State officers 
 at such town meeting or general election is entitled to vote upon 
 the local option questions. 
 
 As soon as the town meeting is over, a return of the votes cast 
 and counted on the local option questions shall be made by the 
 officers charged with the duty of canvassing the votes^ and the 
 town clerk or other officer with whom the returns of town meet- 
 ings are filed shall at once prepare two certified copies of the 
 statement of the result of the vote upon each of the four ques- 
 tions submitted, and file one of such certified copies with the 
 State Commissioner of Excise at Albany, N. Y., and the other 
 with the county treasurer or special deputy commissioner of 
 excise of the county. 
 
 The vote on the local option questions does not go into effect 
 until the 1st day of October following next thereafter, and tuitil 
 such date arrives, the right to traffic in liquors remains just as it 
 was at the time the vote was taken. 
 
 On and after the 1st day of October following the vote, no 
 liquor tax certificate shall be issued, nor shall traflac in liquors be 
 carried on by any person, contrary to such vote, that is to say: 
 If the majority of the votes shall be in the negative, or if there is 
 a tie vote, on any of the four questions, it becomes illegal as soon 
 as the vote goes into effect, as aforesaid, to traffic in liquors under 
 the subdivision or subdivisions of section 8 referred to in such 
 question or questions. Speaking in general terms, if the first 
 question is carried in the negative, saloon traffic becomes unlaw- 
 ful. If the first question is carried in the negative and the 
 fourth question in the affirmative, traffic in liquors to be drunk on 
 the premises where sold becomes lawful, but only in a case where 
 such traffic is carried on in connection with the business of keep- 
 ing a hotel. If the second question is carried in the negative, it 
 becomes unlawful to sell liquors not to be drunk on the premises 
 where sold; and neither a saloon-keeper nor a hotel-keeper has a 
 right to sell liquors by the bottle or measure or in any other way 
 to be drunk off the premises where sold, in any town where the 
 second local option question has been carried in the negative. If 
 the third question is carried in the negative, it becomes unlawful 
 
LiQuoK Tax Law. 19 
 
 to traffic in liquors upon the written prescription of a duly licensed 
 physician. 
 
 Unless a valid petition is filed in the first instance, there can 
 be no resubmission of the local option questions, no matter how 
 many errors the town clerk may make in submitting the questions. 
 
 If, however, a valid and proper petition was filed with the town 
 clerk twenty days before the town meeting and the town clerk 
 fails to post or publish the required notice or prepare the ballots 
 in due form, or if for any other reason the submission of the 
 questions is irregular or illegal, a special town meeting may be 
 held at which the questions can be again submitted, provided an 
 application for a special town meeting is made promptly to the 
 court and a proper order is granted. 
 
 If the court orders a resubmission of the questions, the town 
 clerk must, within five days after the filing of the petition and 
 order of the court, call a special town meeting to be held at a 
 time not less than twenty days nor more than thirty days after the 
 filing of such petition and order, and he shall also cause to be 
 printed, posted and published a notice of such special town meet- 
 ing, and prepare ballots therefor, in all respects as is provided 
 for in the case of the submission of such questions at the regular 
 biennial town meeting, and the result of the vote had at the 
 special town meeting shall take effect on the 1st day of October 
 following such vote. 
 
 If a valid petition has been filed and there has been some sub- 
 sequent material irregularity, an application can be made to the 
 Supreme or County Court or a justice or judge thereof, for an 
 order directing that the local option questions be resubmitted at 
 a special town meeting to be called for that purpose. The de- 
 cisions are conflicting regarding the petition to be filed requesting 
 a resubmission of the questions, but the safest course to follow is 
 to prepare and file a new petition, requesting that the questions 
 be resubmitted at a special town meeting, and this petition should 
 be filed with the town clerk, together with the order of the court, 
 directing a resubmission of the questions. 
 
 The object of submitting the local option questions is to ascer- 
 tain the popular will, and electors are not disfranchised by the 
 mistakes or even willful misconduct of election officers in per- 
 
^0 Digest of the 
 
 forming their duties. (People ex rel. Hirsli v. Wood, 148 IST. Y. 
 146.) 
 
 If the original petition requesting a submission of the questions 
 is void because it does not contain a sufficient number of signa- 
 tures or is not filed in time, or is not acknowledged, or is ma- 
 terially defective in some other respect, an action may be brought 
 to set aside the submission as absolutely void. In such a case, 
 no resubmission of the questions can be ordered. 
 
 CHAPTER VI. 
 The Ratio or Limitation Provision. 
 
 On the 15th day of June, 1910, subdivision 9 was added to 
 section 8 of the Law. This subdivision constitutes one of the 
 most important amendments made to the Law since it was orig- 
 inally enacted in 1896. Previous to the 15th day of June, 1910, 
 there was no limitation whatever upon the number of subdivision 
 1 certificates (saloons, hotels, clubs, etc.) that could be issued in 
 any locality of this State. Up to that time, any person could 
 procure a subdivision 1 certificate in any locality without regard 
 to the number of subdivision 1 certificates that might already be 
 outstanding in the locality. 
 
 It was the purpose of the ratio or limitation amendment to 
 prevent, after its passage, any increase in the number of places 
 at which, on June 15, 1910, subdivision 1 traffic was being car- 
 ried on (including hotels, saloons, cafes and clubs) until the ratio 
 between the population of the city, borough, village or town, and 
 the number of such places of traffic situate therein, should be 
 greater than 750 to 1 ; that is to say, there must be 750 people for 
 each such place of traffic before the number of such places can be 
 increased. It was expressly provided, however, that the limitation 
 fixed by said amendment should not apply to hotel buildings con- 
 taining not less than 100 bedrooms; and such buildings may, 
 therefore, be certificated at any time without regard to the ratio. 
 The amendment in question contains, first, a general prohibi- 
 tion to the effect that no subdivision 1 liquor tax certificate shall 
 hereafter be issued for any premises in any city, borough, village 
 or town in this State unless or until the ratio between the popula- 
 
LiQUOE Tax Laav. ^1 
 
 tion thereof, and the number of such certificates, shall be greater 
 than 750 to 1, and then only pursuant to the express provisions 
 of the Law. It will be seen that if there were no exceptions to this 
 prohibition, it would be necessary to have Y50 population for every 
 subdivision 1 certificate issued in any city, borough, village or 
 town in this State. 
 
 There are, however, several express exceptions to the prohibi- 
 tion aforesaid, which exceptions are designed to protect certain 
 hotel buildings as such, and also all hotels, saloons, cafes and clubs 
 in which the traffic in liquors under a subdivision 1 certificate was 
 being actually carried on when the amendment became a law on 
 June 15, 1910, or in which, on said date, subdivision 1 traffic was 
 temporarily suspended, having theretofore been lawfully carried 
 on therein. Unless the required ratio has been reached in any par- 
 ticular city, borough, village or town, it is absolutely necessary to 
 show, before a subdivision 1 certificate can legally be issued, that 
 the proposed place of traffic falls within one of these exceptions. 
 
 The exceptions are as follows : A .subdivision 1 certificate may 
 be issued for any premises without regard to how many other such 
 certificates there may be in the locality: 
 
 1. Provided subdivision 1 traffic was lawfully carried on at the 
 premises at any time within one year immediately preceding the 
 15th day of June, 1910, if such traffic was not, before said date, 
 abandoned at the premises; or, 
 
 2. Provided such traffic in liquors was suspended at the prem- 
 ises during said period of one year, or any part thereof, because 
 of the result of a vote on the local option questions had at any 
 time; or, 
 
 3. Provided such traffic was suspended during said period of 
 one year, or any part thereof, because of the revocation or for- 
 feiture of a liquor tax certificate on the ground that the certifi- 
 cated premises were suffered and permitted to become disorderly 
 or that gambling was allowed therein ; or, 
 
 4. Provided, during said period of one year, or any part 
 thereof, such traffic in liquors was for any reason whatsoever 
 temporarily suspended, but not abandoned, at the premises ; or. 
 
23 Digest of the 
 
 5. Provided the premises have been occupied continuously for 
 a hotel from and including the 23d day of March, 1896, vyithout 
 regard to vrhether or not the liquor traffic has ever been carried 
 on therein; or, 
 
 6. Provided the proposed place of traffic is a hotel containing 
 not less than 100 bedrooms. 
 
 Unless the proposed certificated premises can be brought within 
 one of the six exceptions above set forth, a subdivision 1 certifi- 
 cate cannot legally be held therefor, if, at the time application 
 is made for such certificate, the required ratio has not been 
 reached. 
 
 It should be borne in mind that the ratio or limitation provi- 
 sion of the statute relates merely to the number of places for sub- 
 division 1 traffic that may legally do business in any particular 
 locality. If the place may legally be certificated vyithin the 
 meaning of this provision, it is still necessary, in applying for a 
 certificate, to comply with all the other requirements of the Law. 
 
 In every city in this State, the present ratio between the num- 
 ber of subdivision 1 certificates legally outstanding and the popu- 
 lation of the city is much less than 1 to 750. For instance, in 
 the city of Albany, there is one such certificate (saloon, hotel, 
 cafe or club) to every 313 people; in Buffalo there is one such 
 certificate to every 262 people; in Syracuse, there is one such 
 certificate to every 359 people; in Rochester, there is one such 
 certificate to every 408 people; in New York city (Manhattan 
 and the Bronx only), there is one such certificate to every 496 
 people, etc., etc. In the natural course of events, it will be many 
 years before the number of such certificates can be increased in 
 any city in this State. 
 
 A single instance may be taken to illustrate the practical opera- 
 tion of the ratio or limitation provision: When this provision 
 became a part of the statute, June 15, 1910, as aforesaid, there 
 were, in the city of Albany, 320 established places for subdivi- 
 sion 1 traffic in liquors and, therefore, all these places were pro- 
 tected and oould continue to be certificated in the same manner 
 as before the Law was thus amended. If these places had not been 
 protected by the various exceptions above set forth, there could 
 be held in the city of Albany at the present time, only 133 sub- 
 division 1 certificates, that is to say, one such certificate for every 
 
LiQUOB Tax Law. 23 
 
 750 people, but all places in the city of Albany where subdivi- 
 sion 1 trafEc was being carried on when the ratio or limitation 
 provision became a law, on June 15, 1910, and all places in said 
 city where such traffic had previously been carried on and was, 
 on said date for any reason whatsoever, temporarily suspended 
 and not abandoned, were fully protected by the exceptions above 
 set forth in the amendment. Before the number of subdivision 1 
 certificates can be increased in the city of Albany, it will be neces- 
 sary for the population to increase to more than 240,750 (which 
 figures are obtained by multiplying the ratio, 750, by the number 
 of subdivision 1 certificates now held in said city [320], and add- 
 ing to the result thus obtained an additional 750 which will bo 
 required for each additional certificate.) 
 
 The- question is often asked " just what places came within 
 one or more of the exceptions contained in said limitation pro- 
 vision, on the 15th day of June, 1910, so as to entitle them to 
 continue to be certificated without regard to population." Such 
 privileged places may be thus described: 
 
 1. Every saloon, hotel, cafe and club in which traffic in liquors 
 under a subdivision 1 certificate was being carried on at the date 
 last above mentioned; 
 
 2. Every hotel which had been continuously used as a bona fide 
 hotel, from and including the 23d day of March, 1896, down to 
 the 15th day of June, 1910, regardless of whether or not the liquor 
 traffic had ever been carried on therein ; 
 
 3. Every hotel building that contains not less than 100 bed- 
 rooms without regard to the time of its establishment as a hotel; 
 
 4. Saloons, hotels, cafes and clubs in which on the 15th day of 
 June, 1910, thetraffie in liquors was not actually being carried on, 
 but where at any time prior thereto traffic in liquors under a sub- 
 division 1 certificate had been carried on and then discontinued, 
 under such circumstances as vrould justify the conclusion that 
 there was no intention to abandon such traffic at the place, but, 
 on the contrary, an intention to resume it at the first reasonable 
 opportunity, and the place had meanwhile continued to preserve 
 its character as a saloon, hotel, cafe or club, as the case might be. 
 This would include a place where the traffic was temporarily sus- 
 pended on June 15, 1910, for the purpose of making repairs to 
 
24 Digest of the 
 
 the building, or pending legal proceedings affecting the prop- 
 erty, or pending a reconstruction or alteration of the building, if 
 for instance the building had been destroyed or injured by fire. 
 
 When the population of any city, borough, village or town 
 increases so that one or more additional subdivision 1 certifi- 
 cates may be lawfully issued therein, the certificate issuing ofiicer, 
 upon written request, must advertise for bids and the person or 
 persons who bid the highest sums (which must not be less than 
 the required tax) are entitled to receive additional certificates, 
 but certificates shall be issued only upon the basis of one certifi- 
 cate for each 750 population in excess of the ratio, lo illustrate : 
 If a village has a population of 5,000 and there are situate therein, 
 ten hotels and saloons where traffic in liquors under subdivision 1 
 certificates is being carried on, one additional subdivision 1 certifi- 
 cate may be issued when the population of such village exceeds 
 8,250. There being ten such certificates already in the village 
 of 5,000 inhabitants, the population must increase to 7,500 before 
 the ratio reaches 750 to 1 and before an additional certificate can 
 legally be issued, there would have to be 751 in addition to 
 7,500,— or 8,251. 
 
 The ratio or limitation provision also contains a plan whereby 
 an established saloon, hotel, etc., may be closed or converted to 
 some other purpose and the right to traffic transferred to a new 
 place in the same city, borough, village or town. The plan pro- 
 vided is as follows : At any time during the unexpired term of a 
 subdivision 1 liquor tax certificate issued for premises in which 
 such traffic may be lawfully carried on, a written notice stating 
 that such traffic is abandoned at the certificated premises may be 
 filed with the certificate issuing officer, which notice shall also 
 particularly describe some other premises in which it is intended 
 to carry on such traffic, which premises must be situated in the 
 same city, borough, village or town as that in which the abandoned 
 premises are located. 
 
 In the case of a hotel, other than a hotel containing less than 
 fifty bedrooms in a city of the first class (1911 amendment), such 
 notice must be in writing, and executed and acknowledged by the 
 certificate-holder, the owner of llie certificated premises and any 
 person to whom the certificate has been transferred or assigned 
 
LiQtroE Tax Law. 25 
 
 as collateral security for moneys loaned or any other obligation 
 incurred, and in all other cases, the notice must be in writing and 
 executed and acknowledged by the certificate-holder, or by his 
 duly authorized attorney (1911 amendment), and by any person 
 to whom the certificate has been transferred or assigned as col- 
 lateral security for moneys loaned or any other obligation incurred. 
 
 It will thus be seen that, in the case of every saloon, and in 
 the case of a hotel situate in a city of the first class and containing 
 less than fifty bedrooms, the traffic in liquors may be declared 
 abandoned at the premises without the consent of the owner of 
 the premisefs. In the case of every hotel, except a hotel contain- 
 ing less than fifty bedrooms in a city of the first class, the traffic 
 cannot be declared abandoned without the written consent of the 
 owner of the hotel building. A notice of abandonment is not legal 
 if the premises declared to be abandoned are situate in an incor- 
 porated village and the proposed new place is situated in the 
 to\vnship outside of the incorporated village or vice versa. Both 
 places must be in the same city, borough, village or town. 
 
 In every case, the notice becomes null and void unless within 
 sixty days after the filing thereof the traffic is lawfully carried on 
 at the new place and continued thereat for a period of not less 
 than sixty days (1911 amendment). If the notice becomes null 
 and void, the right to traffic at the old place is not lost. 
 
 At any time within sixty days after the filing of the notice, the 
 certificate held for the old place declared to be abandoned may 
 be transferred to the new place, or the certificate held for the old 
 place may at once be surrended for rebate and a new certificate 
 taken out for the new place. After the filing of a notice of 
 abandonment, it becomes unlawful to traffic in liquors at the old 
 place unless the notice becomes null and void by reason of the fact 
 that the traffic is not commenced at the new place within sixty 
 days after the filing of the notice and continued for sixty days 
 thereafter. 
 
 Traffic in liquors under a subdivision 1 certificate cannot 
 legally be carried on at a place once legally abandoned, unless the 
 right to traffic thereat is regained by filing, in its favor, a notice 
 of abandonment of the traffic at some other saloon, hotel, etc., in 
 
26 Digest of the 
 
 the same city, borough, village or town. If the right to traffic 
 at the place once abandoned is regained in the manner aforesaid, 
 a certificate may be procured in the same way as if the traffic had 
 been continuously carried on at the old premises, provided that 
 after the traffic was declared to be abandoned thereat, the prem- 
 ises have continued to preserve their privileged character as a 
 saloon or hotel, as the case may be, up to the time the right is 
 regained as aforesaid. 
 
 There are two kinds of abandonment of the liquor traffic. One 
 is abandonment by written notice and relates only to subdivision 
 1 traffic, as set forth in this chapter. The other form of abandon- 
 ment relates to subdivisions 1, 2, 3, 6 and 7 traffic, and is caused 
 in every case by ceasing to carry on the traffic under such cir- 
 cumstances as justify the conclusion that the traffic has actually 
 been permanently discontinued or abandoned at the premises. 
 (See chapter X.) 
 
 CHAPTER VII. 
 
 Elxcise Taxes. — When and to Whom Paid and How Distributed. 
 Compensation of Certificate Issuing Officers. 
 
 The Liquor Tax Law (§ 9) provides that excise taxes 
 " are assessed and shall be paid in advance on the 15th day of 
 September of each year." This provision, however, is not manda- 
 tory and an applicant who pays the required tax and presents the 
 proper papers to the proper officer at any time before the 1st 
 day of October (which is the commencement of the excise year) 
 is entitled to a certificate. It is, however, advisable for an appli- 
 cant to present his papers to the certificating issuing officer 
 several days before the commencement of the excise year, because 
 applications are passed upon usually in the order in which they 
 are presented, and it often happens that the county treasurer, or 
 Special Deputy, as the case may be, cannot act promptly upon all 
 applications if many of them are presented at the last moment. 
 There is one distinct advantage in making application on or before 
 the 15th day of September, especially if the applicant desires to 
 "renew" his certificate; for the Law provides (§ 19) that 
 in such a case, if the applicant is trafficking under a certificate 
 at the time he applies for a new one, he may, upon presenting a 
 
Liquor Tax Law. 27 
 
 proper application statement and bond and paying the required 
 tax, continue to traffic in liquors pending the issuance of the new 
 certificate for the same place until notified in writing by the 
 county treasurer or Special Deputy Commissioner that the certifi- 
 cate will not be issued. If the application is refused, the applicant 
 must be given written notice thereof, and the money paid must 
 be returned to him, within ten days from the receipt of the same. 
 A certificate may be procured at any time after the commencement 
 of the excise year but the tax must be paid for the full month in 
 which the application is made. To illustrate: If it is desired to 
 commence traffic on the 24:th day of January, the full tax for the 
 month of January must be paid and the application for the cer- 
 (tificate may be filed at any time on or before the day when the 
 traffic is to commence. 
 
 One-half of the revenues resulting from excise taxes and fines 
 and penalties (less the amount allowed for collecting the same) 
 belongs to the State of New York, and the remaining one-half 
 (less the amount allowed for collecting the same) belongs to the 
 town or city in which the traffic was carried on from which the 
 revenues are derived. 
 
 In a county or borough having a Special Deputy Commissioner 
 of Excise (who is an officer appointed solely to carry out the pro- 
 visions of the Liquor Tax Law in his county or borough) all such 
 excise revenues are payable, in the first instance, to such Special 
 Deputy Commissioner, while in all other counties such revenues 
 are collected by and paid to the county treasurer; except that 
 all taxes received for subdivision 4 and 5 certificates and for 
 special all-night certificates belong to the State of New York and 
 are payable direct to the State Commissioner of Excise, and all 
 moneys collected by the State Commissioner of Excise in actions 
 brought on liquor tax bonds or to recover penalties belong wholly 
 to the State of New York. (Sections 10, 16 and 43.) 
 
 Compensation of certificate issuing officers. All county treas- 
 urers shall receive as full payment for the performance of their 
 duties under the Liquor Tax Law the following compensations : 
 
 1. In counties containing a city of the first or second class, 
 1 per cent, of the amount of taxes, penalties and fines collected ; 
 
28 Digest of thji 
 
 2. In counties containing a city of the third class, but not a 
 city of the first or second class, 2 per cent. ; 
 
 3. In all other counties, 3 per cent. Such fees shall be 
 deducted and retained by him from the moneys so collected and 
 in addition to the salary or fees allowed by law for the perform- 
 ance of his other official duties. One-half of the fees to which he 
 is entitled is chargeable against the State and the other half 
 against the locality to which the tax belongs. 
 
 In the following named boroughs and counties, the certificate 
 issuing officers are Special Deputy Commissioners of Excise, each 
 having a salary fixed by law, and each performing, within his 
 jurisdiction, the same duties as are performed by county treas- 
 urers in their respective counties where such officers act under 
 the provisions of the Liquor Tax Law : 
 
 Boroughs: Manhattan and the Bronx (one district), Brooklyn, 
 Queens, Richmond. 
 
 Counties: Westchester, Erie, Monroe, Albany, Oneida, Onon- 
 daga, Rensselaer, Schenectady and Niagara. 
 
 CHAPTER VIII. 
 How to Procure a Liquor Tax Certificate ; Liquor Tax Bonds. 
 
 Every applicant for a subdivision 1, 2, 3, 6 or 7 certificate must 
 present to the county treasurer or Special Deputy Commissioner 
 of the county an application statement on a blank form prepared 
 by the State Commissioner of Excise and furnished to applicants 
 by the officers charged with the duty of issuing liquor tax certifi- 
 cates. (§ 15.) This form of application statement con- 
 tains a great many questions each of which must be answered in 
 proper form before the applicant can receive a certificate. Among 
 other things, it is necessary to set forth the name of the applicant, 
 his age and residence; or, if a corporation, it is necessary for the 
 person making the application on behalf of the corporation to 
 set forth the name of the corporation, the laws under which it 
 was organized and the nature of his authority to act for the cor- 
 poration. There must also be set forth the street and number 
 of the premises where the business is to be carried on, if the 
 premises have a street and number, and otherwise such an apt 
 
Ltquok Tax Law. 2'A 
 
 description as will be sufficient to identify tlie premises; also 
 the specific location on the premises of the bar or place at which 
 liquors are to be sold. It must also appear what class of certifi- 
 cate IS desired and what, if any other business is to be carried on 
 in connection with the liquor traffic; further it must appear that 
 the applicant has not been convicted of a felony, nor of a viola- 
 tion of the Liquor Tax Law within one year prior to the date 
 of his application, and that he is not interested directly or in- 
 directly in any unlawful business or occupation, etc. 
 
 The applicant must also state how many buildings occupied 
 exclusively for dwellings there are within 300 feet of his proposed 
 place of trafiic (unless it is unnecessary to obtain dwelling- 
 owners' consents) ; furthermore, he must show (if consents are 
 necessary) that the required number of consents have theretofore 
 been obtained and filed, or he must file with his application the 
 consent of the owner or owners of two-thirds of the total number 
 of dwelling-houses within the statutory radius of 300 feet. The 
 subject of consents of dwelling-owners, and when it is, and when 
 it is not, necessary to obtain and file them, is discussed in detail 
 in Chapter X. 
 
 The applicant must also file the consent of the owner of the 
 premises in which the traffic is to be carried on, unless the owner's 
 consent was previously obtained and is in force and effect. 
 
 It must also appear since what date the premises have been 
 continuously occupied for traffic in liquors or for hotel purposes ; 
 and this is one of the most important questions to be answered by 
 the applicant. What constitutes " continuous traffic " and " con- 
 tinuous occupation for hotel purposes" within the meaning of the 
 Law as construed by the courts is considered in Chapter X. 
 
 The applicant must further state whether or not a notice of 
 abandonment of the traffic at the premises has been filed, and if 
 so, the date thereof, and by whom filed; also whether the right 
 to traffic at the premises is claimed by virtue of the filing of a 
 notice of abandonment and, if so, the date thereof, and by whom 
 filed, etc. Statements as to the filing of a notice of abandonment 
 and rights claimed thereunder are important only on applications 
 for subdivision 1 certificates. The abandonment of the liquor 
 traffic by written notice, the persons who are required to execute 
 2 
 
30 BiGEST OF THE 
 
 such notice and the effect thereof are subjects that are fully con- 
 sidered in chapter VI under the title of " The Ratio or Limita- 
 tion Provision." 
 
 If the traffic in liquors is to be carried on in connection with the 
 business of keeping a hotel, the applicant must show that the hotel 
 building complies with all the structural requirements of the 
 statute, as to the number of bedrooms, the thickness of partitions 
 between each of them, the floor area of each bedroom, the floor 
 area of the dining-room, the table furniture and the other accom- 
 modations thereof, the kitchen and the conveniences for cooking 
 therein, etc.j etc. 
 
 The applicant for a certificate must answer all questions upon 
 his own responsibility and at his own risk, because the certificate 
 issuing officer has no power or authority to hold any investiga- 
 tion for the purpose of determining whether the statements made 
 by the applicant are or are not true. iSuch officer must issue the 
 certificate when the papers presented to him are correct in form, 
 except in the four instances set forth in the next chapter. 
 
 Every applicant for a certificate should exercise the greatest 
 care in seeing that every statement made by him is true, because 
 if any material statement he makes is false the certificate after 
 it has been issued to him may be canceled and revoked in pro- 
 ceedings brought for that purpose. 
 
 A bond must accompany each application statement. This 
 bond must be in the " penal sum of the amount, plus one-half of 
 the tax for one year upon the kind of traffic in liquor to be carried 
 on by the applicant," etc., but in no case shall the bond be for 
 less than $500. To illustrate : In JSTew York city where the tax 
 upon traffic in liquors under a subdivision 1 certificate is $1,200 
 per year, the bond must be in the sum of $1,200 plus onerhalf 
 thereof, $600, or a total of $1,800. 
 
 The bond is liable to be forfeited if the applicant makes any 
 material false statement in his application statement, or if he 
 violates the Liquor Tax Law at any time during the life of the 
 certificate. The bond must be executed by the applicant and by 
 at least two sureties who must be freeholders, each owning within 
 the county, city or borough where the traffic in liquors is to be 
 
LiQUOE Tax J^aw. 31 
 
 carried on, " unencumbered real estate of the value of not less 
 than the penalty of the bond, and who shall be residents of the 
 county, city or borough in which the premises are where such 
 traffic is to be carried on;" or instead of such individual sureties, 
 an authorized bonding company may be offered as surety; or the 
 applicant may file in lieu of either individual sureities or a bond- 
 ing company, a certificate of deposit for an amount equal to the 
 penalty of the bond plus $200. 
 
 An action to recover on a liquor tax bond can be brought only 
 by the State Commissioner of Excise. 
 
 Such an action must be brought within nine months after the 
 cause of action accrues. (Amendment of 1911.) 
 
 If a certificate of deposit is given in lieu of sureties, the certifi- 
 cate holder can make a demand nine months or more after the 
 expiration of the liquor tax certificate for the return to him of the 
 certificate of deposit (amendment of 1911), and it must be 
 returned to him within ninety days after such demand, unless 
 an action on the bond shall have been begun. 
 
 CHAPTER IX. 
 
 When Certificate Must be Refused Even Though Application is 
 
 Correct in Form. 
 
 If all the questions are answered in due form, that is to say, if 
 the application statement is correct on its face, in form and sub- 
 stance, a certifipate must be issued provided a proper bond is pre- 
 sented, and the required tax paid unless it appears from the 
 records in the office of the county treasurer or Special Deputy 
 Commissioner, 
 
 1. That the issuance of the certificate asked for is prohibited 
 by reason of a local option vote ; or, 
 
 2. That the issuance of the certificate is prohibited because of 
 the revocation or forfeiture, within the year immediately past, of 
 a certificate issued for the place, on the ground that the place was 
 suffered or permitted to become disorderly, or that gambling was 
 allowed therein; or, 
 
32 Digest of the 
 
 3. That traffic in liquors has been declared to be abandoned at 
 the premises by a written notice as provided by subdivision 9 of 
 section 8 of the Law, and that such notice has not become nidi 
 and void; or, 
 
 4. That the proposed certificated premises, being a hotel situ- 
 ated in a city or incorporated village, have not been inspected and 
 reported by the superintendent of buildings, the mayor of the city 
 or president of the village (as the case may be) as complying with 
 all the structural requirements of the statute. 
 
 CHAPTER X. 
 
 Consents of Dwelling-Owners. 
 
 In order to prevent the establishment of a place for the traffic 
 in liquors in a community against the will of the owners of resi- 
 dences in the immediate neighborhood, the Law provides that it 
 is necessary for an applicant for a certificate to obtain and file 
 the consent or consents of the owner or owners of two-thirds of 
 the total number of buildings occupied exclusively for dwellings 
 that are situate within 300 feet of the proposed place of traffic. 
 (Sub. 8, § 15.) This is the general requirement to which there 
 are two express exceptions as follows: It is not necessary to 
 obtain the consents of any dwelling-owners at any time no matter 
 how many dwelling-houses there may be in the immediate neigh- 
 borhood of the place of traffic if; 
 
 1. The traffic in liquors was actually lawfully carried on at the 
 premises when the Liquor Tax Law went into effect, March 23, 
 1896, provided the traffic has not since been abandoned; or 
 
 2. If the proposed place of tiaffic is a bona fide hotel that has 
 been continuously conducted as such from and including the 23d 
 day of March, 1896, regardless of whether or not the liquor traffic 
 has ever been carried on therein. These two exceptions are the 
 only exceptions to the provisions requiring the obtaining and 
 filing of dwelling-owners' consents. Unless the proposed place of 
 traffic can be brought within one of these exceptions, it is abso- 
 
Liquor Ta^^ Law. 33 
 
 lutely necessary for the applicant to file with his application state- 
 ment the necessary consents or to show that at some previous time 
 when a certificate was procured for the place, consents of dwelling- 
 owners, as then required, were obtained and filed and that such 
 consents were then sufficient and still remain in full force and 
 effect, and are of such a character as to make it unnecessary for 
 the applicant to file other or additional consents. 
 
 In order to procure a certificate without any consents of dwell- 
 ing-owners, the applicant must show, not only that the place was 
 conducted either as a bona fide hotel, or as a place for the traffic 
 in liquors, on the 23d day of March, 1896^ but that it has been 
 so conducted continuously since then. 
 
 Abandonment. The traffic is deemed to have been continuously 
 carried on unless it has been actually abandoned at the premises. 
 A temporary suspension of the traffic is not an abandonment 
 thereof. If, for instance, the traffic in liquors was being carried 
 on at a saloon on the 23d day of March, 1896, and two years 
 thereafter the traffic was temporarily suspended while the build- 
 ing was being repaired, or if the traffic was temporarily suspended 
 because of the destruction of the building by fire, and there was 
 an intention to rebuild at the first reasonable opportunity and 
 such intention was carried into effect, the traffic would, under 
 such circumstances, be deemed to have been continuously carried 
 on because there was no intention to permanently discontinue or 
 abandon it. On the other hand, if at some time since March 23, 
 1896, the saloon had been converted into a dwelling-house or 
 grocery store, while the traffic was permissible therein, that 
 would be conclusive evidence that the traffic had been abandoned 
 or permanently discontinued at the place. So too, in the case of 
 a hotel that was established as such March 23, 1896 ; — so long as 
 the hotel in existence at that time is maintained as a hotel, a 
 certificate may be procured therefor at any time without the con- 
 sents of dwelling-owners. The temporary closing of the hotel 
 would not affect its privileged character nor would its destruction 
 by fire, if it was rebuilt within a reasonable time. 
 
 What constitutes an abandonment of the liquor traffic is a ques- 
 tion to be determined in each case by all the circimistances 
 peculiar to it. Intfention is the controlling element as evidenced 
 
34 Digest of the 
 
 by the acts of the parties and the surrounding conditions. The 
 traffic may have been suspended for one or two years, or even 
 longer, without depriving the place of its privileged character, if 
 the facts show that the cessation of the traffic was temporary, with 
 an intention to resume the same at the first reasonable oppor- 
 tunity and the premises are meanwhile used for no other purpose. 
 
 Consents for an unlimited term. Whenever it is necessary to 
 obtain consents of dwelling-owners and the proper number is 
 procured and filed, and such consents are given for an indefinite 
 term, that is to say, that no particular time is specified, it is un- 
 necessary thereafter to procure other or additional consents so 
 long as the traffic is continuously carried on at the premises. 
 
 For instance, if an application for a certificate was made in 
 1905 and at that time there were six dwellings within the statu- 
 tory radius of the place of traffic, and the applicant procured and 
 filed consents of the owners of four of such dwellings, and such 
 consents were given for an indefinite term, it would be unneces- 
 sary to obtain any additional consents in any subsequent year 
 when a new certificate was applied for, notwithstanding the fact 
 that the number of dwellings within the statutory radius had 
 since increased from six to fifteen or any other number. 
 
 How Measueemeitt is Made; Consents Generally. 
 
 In measuring the distance from a dwelling-house to a place 
 of traffic, the measurement must be made in a straight line from 
 the nearest entrance to the dwelling-house to the nearest entrance 
 to the place of traffic. 
 
 A dwelling-owner may revoke a consent given by him at 
 any time before it has been acted upon by the certificate 
 issuing officer if the consent was given without considera- 
 tion. (Matter of Adriance v. Kamage, 59 App. Div. 440.) 
 The certificate issuing officer, however, must proceed to issue the 
 certificate acting upon the consent filed by the applicant. The 
 remedy lies in revoking the certificate after it has been issued, 
 if a necessary consent was revoked before the certificate was 
 issued. The death of a dwelling-owner revokes any consent he 
 may have given, if it has not been acted upon l)y the certificate 
 issuing officer. (Matter of Ireland v. Messer, 41 Misc. 425.) 
 
LiQXJOB Tax Law. 35 
 
 An agreement to purchase consents of dwelling-owners is void 
 as against public policy and cannot, therefore, be enforced, but 
 paying for the consent does not render the consent invalid. It 
 is merely an agreement to purchase consents that cannot be 
 enforced. 
 
 Dwelling-owners' consents must be given by the person or per- 
 sons holding the legal title to the dwellings, or by their duly author- 
 ized agents, and the authority of the agent must be specific. The 
 consent of the lessee or tenant is insufficient. (Matter of Sherry 
 V. Van Ausdall, 25 Misc. 361 ; Matter of Lyman v. Murphy, 33 
 Misc. 349.) Where the husband and wife own the dwelling as 
 joint tenants, both must sign the consent (Matter of Clement 
 V. Ferdinand and Seedorf, 58 Misc. 638), so also where they 
 own as tenants by the entirety. (Matter of Quigley v. Monsees, 
 56 Misc. 110.) It seems that a contractor for the purchase of 
 a house and lot is the owner of the dwelling within the meaning of 
 that provision of the statute, requiring the consents of dwelling- 
 owners within the prescribed radius of the place of traffic. (Mat- 
 ter of Clement v. Ambrosia, unreported decision of Justice 
 De Angelis.) 
 
 What buildings are deemed dwellings. The courts have so 
 construed the Law as to afford the best protection possible to the 
 owners of private dwellings, but in order to come within this 
 protection the building must be occupied exclusively as a dwell- 
 ing. For instance, a building comprised of a physician's private 
 residence and public offixie is not a dwelling-house within the 
 meaning of the statute, for the reason that a portion of the build- 
 ing is used as an office for the general practice of the medical 
 profession, and the public is invited to this portion of the build- 
 ing, not for the purpose of mere social intercourse, but for the 
 purpose of availing itself of professional advice and treatment. 
 
 A building used exclusively as a dwelling means a building, 
 all of which, considered as a whole, in its general and prepon- 
 derating use, is designed for and devoted to occupation as a dwell- 
 ing, as a dwelling of its kind would be ordinarily used and to the 
 exclusion of any distinct portion thereof, being openly and habitu- 
 ally devoted to some other purpose, as that of business. (Matter 
 of Lyman v. Baldwin, 26 Misc. 568.) 
 
3G Digest of the 
 
 A building occupied by a person wbo is a dressmaker by trade 
 and does more or less sewing in the house, but has no sign out, 
 is a building used exclusively as a dwelling. (Matter of Euland 
 V. Considine, 21 Misc. 504.) A public boarding-house is not a 
 building occupied exclusively for a dwelling, for a public board- 
 ing-house is a place where the general public is invited to enter 
 and receive accommodation. The mere fact that a family oc- 
 casionally takes in a boarder would not deprive a residence of 
 its character as a dwelling-house. But where transient trade is 
 invited by a public sign, a boarding-house is not a dwelling. 
 
 A building completely constructed and intended to be a dwell- 
 ing which is not yet occupied is a dwelling. (Matter of Ruland 
 V. Considine, 21 Misc. Eep. 504.) 
 
 A building constructed as a dwelling but the first floor of which 
 is used for services of a regular religious organization and occu- 
 pied as a residence on the two upper floors by the pastor, his 
 rfamily and a jani tress, is not occupied excli^sively as a dwelling 
 nor is it a church. (Matter of Finley v. Davidson, 58 Misc. 
 Rep. 639.) 
 
 A dwelling does not lose its character as such by reason of its 
 being vacant through the absence of the owner. (Matter of Bul- 
 lard V. Cunningham, 113 App. Div. 159.) 
 
 Connected buildings and flats. A building divided into sepa- 
 rate parts is, nevertheless, one building within the meaning of the 
 Law, unless the parts are separated by interior partitions carried 
 up from the cellar to the roof, and dividing one entire portion 
 from all the other portions. 
 
 For instance, a block comprised of two portions, one of brick 
 and the other of wood, owned by one person, who rented various 
 portions of the block to difl'erent individuals as flats for residen- 
 tial purposes, is to be considered as two btiildings only, notwith- 
 standing the fact that the brick building contained six flats, four 
 of which had separate street entrances and were entirely distinct 
 from each other. This is so, because while the flats in the brick 
 portion of the block were disconnected, there were no interior 
 partitions carried up from the cellar to the roof which made a 
 distinct and absolute division. (Matter of Adriance v. Eamage, 
 59 App. Div. 440.) 
 
Liquor Tax Law. 37 
 
 Meaning of luords " nearest entrance." The words " nearest 
 entrance " to a dwelling is the nearest entrance, whether rear, side 
 or front (Matter of Vceder v. Miller, 31 Misc. Eep. 569), but it 
 has been held that rear entrances are not entrances within the 
 statute, if they are merely from back yards to which there is 
 absolutely no access from the street. (McDougal v. Malaghan, 
 184 ]Sr. Y. 253.) The "nearest entrance" is any entrance 
 through which the public enter the building as patrons of the 
 business carried on therein. 
 
 The street entrance to a common hallway of a building rather 
 than the door into a particular room or part of the building on 
 the second floor thereof, occupied for the traffic in liquors, is the 
 nearest entrance to a certificate-holder's premises. (Matter of 
 Wicker v. Underbill, 17 :\Iisc. Kep. 19.) 
 
 CHAPTER XI. 
 
 Posting the Certificate. 
 
 After the applicant has received his certificate, and before he 
 can do any business thereunder, he is required to inclose the 
 certificate " in a suitable wood or metal frame, having a clear 
 glass face and a substantial wood or metal back, so that the whole 
 of said certificate may be seen therein." He is also required to 
 post up the certificate, and at all times keep it displayed, in a con- 
 spicuous place in the room or bar where the traffic in liquors is 
 carried on, so that all persons visiting the place may readily see 
 the same. If there is a door opening from the street into the 
 barroom, and also a window facing the street upon which such 
 door opens, the certificate must be displayed in such window so 
 it may be readily seen from the street. (§ 19.) 
 
 It is a misdemeanor for any person holding a liquor tax certifi- 
 cate to post it, or permit it to be posted, upon premises other than 
 those for which the certificate was issued, unless the certificate 
 has been duly transferred to other premises in the manner pro- 
 vided by the statute. It is also a misdemeanor for a certificate- 
 holder to poSit the certificate, or permit it to be posted, upon 
 premises where traffic in liquors is being carried on by any person 
 other than himself. It is also a misdemeanor to knowingly deface 
 or destroy any liquor tax certificate. (§ 19.) 
 
38 Digest of the 
 
 Certificates issued by the iState Commissionei" of Excise to 
 common carriers (steamboats and vessels and railway cars) are 
 required to be framed and posted conspicuously at the bar, if on 
 a boat, -where the same may be readily seen by the passengers ; 
 and if on a railway car, the certificate, together with any transfer 
 permit of the same, shall be framed and conspicuously posted in 
 the car for which it was issued, or to which it has been transferred, 
 so that all passengers may readily see the same. (§ 19.) 
 
 CHAPTER XII. 
 
 How to Obtain a Duplicate Certificate When the Original Certifi- 
 cate is Lost or Destroyed. 
 
 If the certificate after having been duly issued is lost or de- 
 stroyed without fault on the part of the holder thereof, or his 
 agents or employees, a duplicate certificate may be issued " by 
 the State Commissioner of Excise in his discretion and in accord- 
 ance with such rules and regulations as he may prescribe." 
 (§ 19.) It has been the practice of the State Department of 
 Excise in issuing such a certificate to require the applicant to file 
 in duplicate a petition requesting the issuance of a certificate to 
 replace the one lost or destroyed. The applicant must set forth 
 in his petition the facts of the loss or destruction of the certificate 
 and show that neither he nor his agents nor servants were to 
 blame therefor. He must also execute a bond on a special form 
 prepared by the Department. The blank bond and petition for 
 the issuance of the duplicate certificate may be obtained by any 
 person upon request made to the .State Department of Excise, 
 Albany, E". Y. When the duplicate certificate is issued by the 
 State Department of Excise, it is usually transmitted to the 
 county treasurer or Special Deputy Commissioner and delivered 
 by that officer to the applicant. The duplicate certificate should 
 be posted up promptly in the same maimer as the original certifi- 
 cate was posted on the premises. A person who loses his liquor 
 tax certificate or has it destroyed by fire or otherwise should at 
 once apply to the State Commissioner of Excise for the necessary 
 blanks to enable him to have a duplicate certificate issued as soon 
 as possible. 
 
Liquor Tax Law. 39 
 
 CHAPTER XIII. 
 
 Certain Kinds of Business not to be Carried on in Connection 
 with Liquor Traffic. 
 
 No person, copartnership, corporation or association engaged 
 in the business of selling dry goods or groceries or provisions or 
 drugs as a pharmacist can legally hold, or traffic in liquors under, 
 a subdivision 1 certificate in the same building in which the 
 dry goods or groceries or provisions or drugs are sold unless the 
 room in which the liquor traffic is conducted is separated from the 
 rest of the building by partitions at least three inches thick ex- 
 tending from floor to ceiling and with no opening or means of 
 entrance or communication with the rest of the building, so that 
 it is necessary to go into a public street before the one place can 
 be entered upon leaving the other. (§ 20.) 
 
 A person, corporation, etc., engaged in the business of selling 
 dry goods, or groceries, or provisions, or drugs as a pharmacist 
 in a particular building may legally traffic in liquors in another, 
 and entirely separate and distinct, building. 
 
 This prohibition relates only to traffic under a subdivision 1 
 certificate. 
 
 CHAPTER XIV. 
 
 Persons Prohibited from Trafficking in Liquors. • 
 
 The following persons cannot legally traffic in liquors (§ 21.) : 
 (1) A person who has been or shall be convicted of a felony or 
 who knowingly has in his employ, a person who has been so con- 
 victed ; 
 
 (2) a person who is under the age of twenty-one years; 
 
 (3) a person who is not a citizen of the United States and a 
 resident of the State of New York; 
 
 (4) a person who shall be convicted for a violation of the 
 Liquor Tax Law, until one year from the date of his conviction ; 
 
 (5) a person who shall have a liquor tax certificate revoked 
 in a civil proceeding, unless one year has expired from the date 
 of the revocation; 
 
 (6) a person who, as agent or owner, suffers or permits any 
 gambling on the certificated premises, or in any yard, booth. 
 
40 i)lGEST Ol? i'tr'E 
 
 garden or any other place appertaining thereto or connected 
 therewith ; . , 41 
 
 (10) a person who carries on, or permits to be carried on, or 
 wlio is interested in, any traffic, business or ococupation, the carry- 
 the room where the liquors are sold and any other room or place 
 where gambling is carried on by any one ; 
 
 (8) a person who suffers or permits the certificated premises 
 to become disorderly; 
 
 (9) a person who suffers or permits or allows any opening or 
 means of entrance or passageway for persons or things between 
 the room where the liquors are sold and any other room or place 
 which any persoii whosoever suffers or permits to become dis- 
 orderly ; 
 
 (10) a person who carries on, or permits to be carried an, or 
 who is interested in, any traffic, business or occupation, the carry- 
 ing on of which is a violation of law; 
 
 (11) a person whose agent or agents shall be twice convicted 
 within a period of two years for a violation of the Liquor Tax 
 Law unless one year has elapsed since the date of the second con- 
 viotion. 
 
 -No copartnership shall traffic in liquors unless one or more of 
 the members thereof shall be a resident of this State and a citizen 
 of the United States and own at least one-half interest in the 
 business. 
 
 ISlo corporation or association incoriDorated or organized under 
 the laws of another State or country shall traffic in liquors in this 
 State except, however, that such a corporation or association may 
 procure a subdivision 4 certificate if such corporation or as-- 
 sociation be acting as a common carrier or be operating dining, 
 bulfet, parlor or sleeping cars' in this Stale. 
 
 iSTo corporation organized under chapter 559 of the Laws of 
 1895, or under any law which prior to May 6, 1895, provided 
 for the organization of societies or clubs for social, recreative or 
 similar purposes shall traffic in liquors with any person other 
 than the members of the corporation. 
 
 ISTo corporation, association or copartnership shall traffic in 
 liquors if it has been convicted for a violation of the Liquor Tax 
 
LiQDOE Tax Law. 41 
 
 Law until three years have expired from the date of the convic- 
 tion, nor shall any corporation, association or copartnership 
 traffic in liquors if an officer, member or agent thereof has been 
 or shall be twice convicted for a violation of said Law until three 
 years have expired from the date of the conviction. 
 
 The provisions set forth in this chapter apply only to the 
 right to traffic in liquors as a certificate-holder. A conviction for 
 a violation of the Liquor Tax Law does not prevent one's employ- 
 ment as a bartender. (People ex rel. McKone v. Flynn, 'N. T. 
 Law Jour., Oct. 8, 1904.) 
 
 But it would be a violation of the Law for a certificate-holder 
 knowingly to employ as a bartender a person who had been con- 
 victed of a felony. 
 
 CHAPTER XV. 
 
 Certain Officials Not to be Interested in Manufacture or Sale of 
 
 Liquors. 
 
 Section 22 of the Liquor Tax Law provides that it " shall 
 be unlawful for any excise commissioner, excise inspector, 
 police commissioner, police inspector, captain, sergeant, rounds- 
 man, patrolman, or other police official or subordinate of any 
 police department or any commissioner of excise or inspector of 
 excise, in the several villages, towns and cities of this State, to 
 be either directly or indirectly interested in the manufacture or 
 sale of spirituous or malt liquors, ales, wines or beer or to offer 
 for sale, or recommend to any dealer therein, any spirituous or 
 malt liquors, ales, wines or beer." 
 
 Said section further provides that if any of such officers or 
 officials solicit or recommend any dealer to purchase any liquors, 
 such act shall be presumptive evidence that such officer or official 
 is interested in the manufacture or sale of such liquors. 
 
 This section was not a part of the statute until the year 1909 
 when it was placed therein by chapter 34 of the Consoli- 
 dated Laws. The wording of this section is not in complete 
 harmony with the rest of the statute, the section having been 
 enacted into law before the passage of the present Liquor Tax 
 Law and remaining in the General Laws until it was incoi-porated 
 
4:2 Digest of the 
 
 into the present statute by the Board of Statutory Consolidation. 
 It was enacted^ at a time when licenses were issued by local boards 
 of excise, and the primary object of it is to prevent all excise 
 officials and every officer or subordinate of city police depart- 
 ments from being interested in any way in the manufacture or 
 sale of liquors. 
 
 CHAPTER XVI. 
 
 Places Where Traffic in Liquors is Not Permitted; Churthes 
 and Schoolhouses. 
 
 It is illegal to traffic in liquors in any building, or upon any 
 premises or lands estiablished as a penal institution, protectory, 
 industrial school, asylum, State hospital, State agricultural and 
 industrial school, colony or institution established for the care 
 or treatment of epileptics, or poorhouse; and if such building, 
 premises or lands (other than a county jail or State prison) be 
 situate in a town and outside of the limits of an incorporated 
 village or city, it shall be unlawful to traffic in liquors within 
 one-half mile of any building, premises or lands so occupied, pro- 
 vided there be such distance of one-half mile between such biiild- 
 ing, premises and lands and the nearest boundary line of such 
 village or city. 
 
 But the prohibition against traffic in liquors within one-half 
 mile of a poorhouse does not apply to a place which, on the 2'3d 
 day of March, 1896, was lawfully occupied for a hotel. 
 
 Nor does the prohibition against traffic in liquors within the 
 prescribed limit of a building, premises or lands occupied as a 
 State hospital apply, if the majority of the board of managers 
 and the siiperintendent of the State hospital execute and acknowl- 
 edge a consent in writing that the traffic may be carried on 
 within such prescribed distance of the hospital and such instru- 
 ment is filed with the application statement. (Sub. 1, § 23.) 
 
 Traffic in liquors is also prohibited in any form from a wagon 
 or other vehicle unless a subdivision 4 or 5 certificate has been ob- 
 tained and properly posted. (Sub. 3, § 23.) 
 
 Traffic in liquors is also prohibited upon any premises used for 
 and as a cemetery. (Sub. 4, § 23.) 
 
LiQTJOE Tax Law. 43 
 
 It is unlawful for any person whether having paid the required 
 tax or not to sell, offer or expose for sale, or give away any liquor : 
 
 On any day of a general or special election or city election or 
 town meeting or village election, within one-quarter of a mile 
 of any voting place while the polls are open; unless said special 
 election is held for a legislative office within the limits of a city, 
 in which event liquors shall not be sold, offered or exposed for 
 sale at any place within the territory in which such election is 
 being actually held, and to a distance of 250 feet in every direc- 
 tion from every boundary of said territory. (Clause C, § 30.) 
 
 It shall not be lawful to sell, offer or expose for sale, or give 
 away any liquor within 200 yards of the grounds or premises 
 upon which any Slate, county, town or other agricultural or 
 horticultural fair is being held, unless such grounds or premises 
 are within the limits of a city containing 150,000 inhabitants, 
 or more. (Clause D, § 30.) 
 
 With the single exception hereafter noted, it is unlawful to sell 
 liquors in any quantity in what is known as a " no-license " town, 
 that is to say, a town in which all four of the local option ques- 
 tions have been carried in the negative, and it is also unlawful 
 to sell liquor in any quantity in a town in which the first, second 
 and fourth questions have been carried in the negative and the 
 third question in the affirmative, except by a person who is a 
 duly licensed pharmacist and has procured a subdivision 3 or 
 pharmacist certificate. The exception referred to is this: In 
 a " no-license " town or in a tovra where subdivision 3 traffic 
 only is permissible, a grower of fruit or a manufacturer of any 
 liquor produced therefrom in such town may procure a subdi- 
 vision 7 certificate under which he may sell such liquor in 
 quantities of two wine gallons or more hut only for delivery out- 
 side of such town, except that such liquors may be sold and de- 
 livered in such town to the holder of a subdivision 3 certifi- 
 cate therein, if there be one. (Clause J, §, 30.) 
 
 It is to be noted that it is not the "■ traffic in liquors " that is 
 prohibited in a " no-license " town, hut fhe sale of liquors in any 
 quantity, making it unlawful to sell liquors of any kind in such a 
 town either by the glass, quart, gallon or barrel or in any other 
 quantity whatsoever. 
 
44 Digest of the 
 
 Eircpt that in such town, a subdivision 7 or fruitgrower's 
 certificate may be issued under which the holder thereof would 
 have the right to sell but not deliver in such town liquors pro- 
 diTced solely from fruits — in other words, such holder could sell 
 such liquors in a " no-license " town, but only for delivery to pur- 
 chasers residing outside of such town. 
 
 It is unlawful to sell, offer or expose for sale, or give away, 
 any liquor Avithin half a mile of the grounds of the United States 
 Military Academy at West Point to any United States cadet in 
 uniform, or to a person known to be a United States cadet. 
 (Amendment of 1911.) 
 
 CnuECiiES ak:) Schoolhooses. 
 
 The provisions of the statute concerning the carrying on of 
 the liquor traffic within 200 feet of a church or schoolhouse do 
 not appear to be generally imderstood. In the first place, the 
 statutory provisions aforesaid relate only to traffic in liquors 
 under a subdivision 1 certificate. There is nothing in the statute 
 to prevent a person who holds a subdivision 2 or 3 certificate 
 from trafficking in liquors within 200 feet, or any other distance, 
 of a church or schoolhouse. 
 
 But the statute expressly provides that traffic in liquors under 
 d subdivision 1 certificate shall not be carried on in any build- 
 ing, yard, booth or other place situate on the same street or 
 avenue and within 200 feet of a building occupied exclusively 
 as a church or schoolhouse; the measurement to be made in a 
 straight line from the center of the nearest entrance of the church 
 or school to the center of the nearest entrance of the place of 
 traffic. (Sub. 2, § 23.) 
 
 Three points are to be carefully observed: (1) That the pro- 
 hibition relates solely to subdivision 1 traflSc ; 
 
 (2) that the place of traffic and the church or schoolhouse (as 
 the case may be) must be situate on the same street or avenue; 
 
 (3) that the church must be occupied exclusively as a church 
 and the schoolhouse must be occupied exclusively as a schoolhouse. 
 
 In construing this section, the courts have held that a saloon 
 situate upon a corner of two streets fronting upon the other street 
 than that upon which the church is situated and having no en- 
 trance upon the same street as the church is, nevertheless, within 
 
LiQUOE Tax Law. 45 
 
 the prohibition of the statute and that subdivision 1 traffic in 
 liquors cannot legally be carried on therein, without the consent 
 of the church. (Matter of Zinzow v. Schmidt, 18 Misc. Hep. 
 653; Matter of Holden v. McCusker, 23 Misc. Hep. 446; Matter 
 of McCusker v. McCusker, 47 App. Div. 111.) 
 
 It is further to be observed that if the proper church authori- 
 ties sign a consent in writing that the traffic be carried on at a 
 place within 200 feet of the church, a subdivision 1 certificate 
 may be obtained, but no provision is made for the giving of any 
 consent by the trustees or other aiithorities of a school. 
 
 It should be understood clearly that this provision against sub- 
 division 1 traffic within 200 feet of a church or schoolhouse 
 does not apply to the following places: (1) To any place which 
 has been continuously occupied as a hotel from and including 
 the 23d day of 'March, 1890, without regard to whether or not 
 traffic in liquors has ever been carried on therein ; 
 
 (3) any place in which traffic in liquors to be drunk on the 
 premises where sold has been continuously carried on since the 
 23d day of March, 1896 ; 
 
 (3) any place which on said date was occupied, or in process 
 of construction, by a corporation or association which traffics in 
 liquors solely with the members thereof; 
 
 (4) any place in which subdivision 1 traffic was carried on, 
 or which was established as a bona fide hotel, before the erection 
 or establishment of a church or schoolhouse within 200 feet 
 thereof, provided such traffic has been continuously carried on or 
 the place has been continuously conducted as a hotel, from a date 
 prior to the building or establishment of the church or schoolhouse. 
 (Amendment of 1911.) It will be seen, therefore, that under 
 the Law as now in force, the erection or establishment of a church 
 or schoolhouse within 200 feet of a saloon or hotel which has been 
 continuously conducted as such from a date prior to the erection 
 or establishment of the church or schoolhouse, does not affect the 
 right to traffic at the saloon or hotel, notwithstanding the fact that 
 the traffic was not carried on at the saloon, or that the hotel was 
 not established as such, on the 23d day of March, 1896. 
 
 If a saloon or hotel is situate on the same street or avenue, 
 and within 200 feet of a church, and a certificate issued therefor 
 
46 Digest of the 
 
 has been or shall be revoked after May 1, 1905, in a civil pro- 
 ceeding, or forfeited by criminal conviction for a violation of law 
 committed after May 1, 1908, and the forfeiture or revocation 
 was on the ground that the certificated premises were suffered or 
 permitted to become disorderly, or that gambling was allowed 
 therein, traffic in liquors at the place is thereafter absolutely and 
 permanently barred, unless in the case of a church, the consent 
 of the proper authorities is obtained and filed. 
 
 CHAPTER XVII. 
 Surrender of Liquor Tax Certificate for Rebate. 
 
 If a person holding a liquor tax certificate desires to cease 
 trafficking thereunder, and obtain the return of that portion of the 
 tax represented by the unexpired portion of the term of the cer- 
 tificate, he must file what is called a " petition for rebate " which 
 petition, together with the certificate, must be presented to the 
 officer who issiied the certificate. There must also be filed the 
 written consent of the assignee of the certificate, if there be one, 
 except in the case of a subdivision four certificate. (Amend- 
 ment of 1911.) The rebate is computed in an amount equal 
 to one-half of the tax for the balance of the excise year com- 
 mencing with the first day of the month following the one in 
 which the certificate is surrendered, or if the surrender is made 
 on the first day of the month, rebate is payable for .that month. 
 (§24.) To illustrate: 
 
 If A has procured a certificate for a full excise year commenc- 
 ing with the first day of October, 1911, and ceases traffic there- 
 under, and surrenders the certificate for rebate on the first day of 
 January, 1912, he is entitled to an amount equal to one-half of 
 the tax for nine months. If he paid twelve hundred dollars 
 ($1200) for a certificate, he is entitled to receive hack four hun- 
 dred and fifty dollars ($450) ; if he paid three hundred dollars 
 ($300) for a certificate, he is entitled to receive back one hun- 
 dred and twelve dollars and fifty cents ($112.50), etc. In order 
 to be entitled to rebate on a certificate, the person claiming the 
 same must show in his petition that no complaint, prosecution, 
 action or proceeding is pending against him on account of any 
 violation of the Liquor Tax Law ; that he has not violated any pro- 
 
LiQUOE Tax Law. 47 
 
 vision of said law during the excise year for which the certificate 
 was issued; that he is not under arrest or indictment for a viola- 
 tion of said Law and that he has ceased to traffic in liquors dur- 
 ing the term for which the tax was paid under such certificate. 
 
 No rebate is allowed on any certificate that has less than one 
 month to run at the time of its surrender, and no rebate is pay- 
 able upon subdivision three, five, six or seven certificates. 
 
 When the certificate issuing officer receives the petition for re- 
 bate and the certificate which must accompany the same, together 
 with the written consent of the assignee of the certificate, if there 
 be one, he is required to execute duplicate receipts, showing the 
 name of the person to whom the certificate was issued, the num- 
 ber thereof, the date when issued, the amount of tax paid there- 
 for, the date of surrender of the certificate, together with the 
 amount of rebate due thereon, also the name of the person 
 entitled to receive the rebate, the locality liable for one-half of such 
 rebate and the name and title of the fiscal officer thereof. 
 
 One of these receipts is to be delivered to the person entitled 
 to the rebate and the other of such receipts is to be immediately 
 transmitted, together with the surrendered certificate and the 
 petition for the cancellation thereof, to the State Commissioner 
 of Excise. 
 
 Within thirty days thereafter the State Commissioner of Ex- 
 cise must pay the rebate unless it appears that there is a prosecu- 
 tion or action or proceeding pending against the claimant on ac- 
 count of a violation of the Liquor Tax Law, or unless there is 
 evidence that the claimant has violated the Law during the ex- 
 cise year for which the certificate was issued. 
 
 The rebate is paid in the form of two orders, one order, repre- 
 senting one-half the rebate is to be paid by the State Treasurer 
 and the other order representing the remaining half is payable by 
 the fiscal officer of the city or borough or town in which the place 
 of traffic is located. 
 
 Notice to police officials. Tt is the duty of the certificate issu- 
 ing officer to whom a liquor tax certificate is surrendered for 
 rebate to serve at once a written or printed notice upon the com- 
 missioner of police, chief of police or chief police officer of the 
 
48 Digest of the 
 
 city, borough or village in which the place for which the sur- 
 rendered certificate was issued is situated, or upon the sheriff of 
 the county and a constable of the town, if the certificate was is- 
 sued for a place situate not within any city, borough or village, 
 which notice shall describe by number the certificate surrendered, 
 the date of surrender, the name and place of residence of the 
 holder of the certificate, the location of the premises by street 
 and number, if any, and otherwise a description sufficient to 
 identify tlio premises, and also set forth the fact that the certifi- 
 cate has been surrendered and that the traffic in liquors at the 
 premises by any one is not aiithorized until a new certificate has 
 been obtained therefor. The certificate issuing officer shall also 
 forward to the State Commissioner of Excise a copy of such notice 
 with proof of service thereof. 
 
 CHAPTER XVIII. 
 
 Recovery of Excess Tax Erroneously Paid. 
 
 If any person who is lawfully entitled to traffic in liquors pays 
 by mistake a siim therefor in excess of the legal tax required to 
 be paid by the statute, such person or his legal representative or 
 assignee may recover the amount of such excess tax by making 
 proper proof of the facts to the State Commissioner of Excise. 
 The State Department of Excise has prepared a form of applica- 
 tion to be used in cases of this kind and such forms may be had 
 upon applying to the State Department of Excise, Albany, 'N. Y. 
 
 If, upon examination of the claim, the State Commissioner of 
 Excise determines that it is a just and valid one he issues two 
 orders for the payment of the excess tax, one order for such por- 
 tion thereof as was received by the State, and the other order for 
 such portion thereof as was received by the locality where the 
 certificated premises are located. If the fiscal oflficer of the local- 
 ity has no moneys in his possession to pay such claim, he is re- 
 quired to borrow enough money at once for that purpose upon the 
 credit of the locality. (Sub. 3, § 24.) 
 
Ltquor Tax Law. 49 
 
 CHAPTER XIX. 
 Procedure When Issuance or Transfer of Certificate is Refused. 
 
 When any officer whose duty it is to issue or transfer a liquor 
 tax certificate shall refuse to issue or transfer the same, he shall 
 indorse upon the application or attach thereto a statement of the 
 reasons for his refusal and, if requested, shall furnish a copy of 
 such statement to the applicant. The applicant then has the right 
 to review the action of such officer by a writ of certiorari. The 
 writ may be issued by, returnable to and heard by a county judge 
 of the county or a justice of the Supreme Court of the judicial 
 district in which the premises are situated in which the applicant 
 desires to carry on the liquor traffic. If the writ of certiorari be 
 granted, the officer charged with the duty of issuing or transferring 
 the certificate shall make a return to the writ, which return shall 
 include copies of all papers on which his action was based, and 
 the statement of his reasons for refusing to grant the application. 
 If the judge or justice shall determine upon the hearing of the 
 writ that the refusal to issue or tranfer the certificate has been 
 made by the certificate issuing officer without good and valid rea- 
 •sons therefor and that the certificate should have been issued or 
 transferred, the judge or justice may make an order commanding 
 the certificate issuing officer to grant the application and issue 
 or transfer the certificate as requested, upon the payment of the 
 required tax or fee. (§ 27.) 
 
 If the applicant complies with all the statutory preliminaries, 
 but the issuing officer refuses to be bound by the applicant's state- 
 ment, \and refuses to issue or transfer the certificate, relying upon 
 other information and assuming to act judicially, he will be com- 
 pelled to perform the ministerial duty of determining whether the 
 application is correct on its face in form and substance ; for such 
 officer has no power or authority to hold any investigation of his 
 own for the purpose of determining what his action should be, but 
 is absolutely bound by the records of his office and the papers 
 presented to him by the applicant. (People ex rel. Belden Club v. 
 Hilliard, 28 App. Div. 140.) Certiorari is the only proceeding 
 that may be invoked to compel the issuance or transfer of a cer- 
 tificate and the remedy is exclusive. A mandamus is improper. 
 
60 Digest oi" the 
 
 Certiorari will not lie to compel the issuance of a liquor tax 
 certificate contrary to a local option vote even when the submis- 
 sion of the local option questions is alleged to be unauthorized 
 and even though the court may not order a resubmission of such 
 questions at a special town meeting. The certificate issuing 
 ofiicer is bound by the local option status of the town as reported 
 to him by the town clerk and he cannot go behind such report. 
 (Matter of Rogers, 41 Misc. Eep. 389; Matter of Warner, 51 
 Misc. Eep. 362; Matter of Tinkcom, 50 Misc. Eep. 250.) 
 
 CHAPTER XX. 
 
 Proceedings to Revoke and Cancel a Liquor Tax Certificate. 
 
 (Sub. 2, § 27.) 
 
 At any time after a liquor tax certificate has been issued, it 
 may be canceled and revoked (1) if material statements in the 
 application of the holder of such certificate were false; or, 
 
 (2) if the reqtiired consents of dwelling-owners have not been 
 properly filed; or, 
 
 (3) if the holder of the certificate was not for any reason en- 
 titled to receive or hold the same or to traffic in liquors; or, 
 
 (4) if any provision of the Liquor Tax Law is violated at the 
 certificated premises by the holder of the certificate or by his 
 agent, servant, bartender or any person whomsoever in charge of 
 such premises; or, 
 
 (5) if the holder of a certificate shall violate any of the pro- 
 visions of the Liqtior Tax Law at any place. 
 
 A proceeding to cancel and revoke a liquor tax certificate may 
 be commenced and prosecuted either by the State Commissioner 
 of Excise or by any taxpayer of the city, borough, village or town 
 for which the liquor tax certificate was issued, provided such tax- 
 payer occupies or owns a dwelling situated within 300 feet of the 
 certificated premises. 
 
 The proceeding is commenced by the preparation of a petition 
 which shall state the facta upon which the application is based. 
 The petition may be made upon information and belief, provided 
 it is accompanied by affidavits of persons having knowledge of 
 
Ltqitor Tax Law. 51 
 
 ion. 
 
 the facts, and in such, form it is sufficient to confer jurisdieti 
 The petition must be verified and should be presented to a jus- 
 tice of the Supreme Court or a iSpecial Term of the Supreme 
 Court of the judicial district, or to the County Court or judge 
 of the county, in which the certificated premises are located or in 
 which the holder of the certificate resides. Upon the presentation 
 of such petition, the justice, judge or court shall grant an order 
 requiring the certificate-holder to show cause before such justice, 
 judge or court or before a Special Term of the Supreme Court 
 of the judicial district, on a day specified therein, not more than 
 ten days after the granting thereof, why an order should not be 
 made revoking and canceling the liquor tax certificate, and the 
 order shall also contain an injunction restraining the certificate- 
 holder from transferring or surrendering the certificate for re- 
 bate. 
 
 Before granting the order to show cause or at any time during 
 the pendency of the proceeding, the justice, judge or court may, 
 upon motion of any party to the proceeding and on not less than 
 five days' notice, order the petitioner, if he be a taxpayer other 
 than the State Commissioner of Excise or his deputy, to present 
 a bond to the people of the State of New York in the penal sum 
 of not more than $500, or less than $100, and conditioned that the 
 said proceeding will be prosecuted to a final determination with- 
 out delay, and will not be suspended, compromised, settled or 
 discontinued, except in pursuance of an order of the court. 
 
 A copy of the petition and order must be served upon the 
 holder of the certificate and the officer who issued the same or 
 his successor in office and also upon the State Commissioner of 
 Excise, not less than five days before the return day of the order. 
 
 On the return day, the justice, judge or court before whom 
 the order is returnable, shall grant an order revoking and cancel- 
 ing the certificate, unless the holder of the certificate shall pre- 
 sent and file an answer to the petition, which answer denies each 
 and every violation alleged in the petition and raises an issue as 
 to any of the facts material to the granting of the order. If such 
 an answer is filed, the justice, judge or court shall hear the proofs 
 of the parties in relation to the allegations of the petition or 
 
52 Digest ov tt-te 
 
 answer. li the allegations in the petition are established, the cer- 
 tificate must be canceled and revoked by an order to that effect, 
 which order shall also direct that the certificate-holder or any other 
 person having the certificate in his possession or under his control, 
 shall forthwith surrender the certificate to the officer who issued 
 the same or to his successor in office. The neglect or refusal to 
 surrender the certificate pursuant to such order is a contempt of 
 court punishable in the manner provided by the Judiciary Law. 
 
 If the certificate revoked is a subdivision 3 certificate, held 
 by a person who is a licensed druggist or licensed pharmacist, such 
 person shall, in addition to the other penalties provided by the 
 Law, forfeit the use of his license as such druggist or pharmacist 
 for the term of one year and be deprived of all rights and priv- 
 ileges thereunder during such period; and such license shall be 
 surrendered with the liquor tax certificate ; and upon the revoca- 
 tion of a liquor tax certificate, issued to any person who is not a 
 licensed druggist or pharmacist, but -who is in copartnership with 
 a licensed druggist or pharmacist, or has one in his emjDloy, at the 
 place for which the certificate was issued, if it shall appear from 
 the order that any violation of the Law was committed by such 
 licensed druggist or pharmacist, or with his knowledge or consent, 
 at the place for which the certificate was issued, the license of such 
 druggist or pharmacist shall be similarly forfeited and surren- 
 dered. 
 
 Costs upon a proceeding to cancel and revoke a liquor tax cer- 
 tificate may be awarded in favor of and against the petitioner or 
 the certificate-holder or any other party to such proceeding in 
 such sums as, in the discretion of the justice, judge or court, 
 may seem proper. 
 
 At the time of the return of the show cause order, or at any 
 time thereafter during the pendency of the proceeding, and upon 
 five days' notice to the certificate-holder, an injunction order 
 may be granted restraining the certificate-holder, his agents and 
 servants, from trafficking under the certificate sought to be can- 
 celed, and requiring that the certificate be immediately delivered 
 to the officer who issued the same. Before siich an injunction will 
 be granted, good cause therefor must be shown and there must be 
 
LiQUOE Tax Law. 53 
 
 positive averments by witnesses having personal knowledge of 
 facts constituting one or more of the violations of the Law set 
 forth in the petition. The justice, judge or court may, if the pe- 
 tioner is a taxpayer other than the State Commissioner of Excise 
 or his deputy, require the filing of a bond with sufficient sureties 
 before granting such an injunction, which bond shall be con- 
 ditioned that, in case the certificate-holder is successful in the 
 proceedings, the petitioner will pay all costs taxed and allowed 
 and all damages not exceeding the sum of $250. 
 
 No proceeding instituted for the purpose of canceling and re- 
 voking a liquor tax certificate shall be siispended, compromised, 
 settled or discontinued, except by order of the justice, judge or 
 court before whom or which the same is pending, upon not less 
 than eight days' written notice to all parties, including the State 
 Commissioner of Excise. 
 
 Any person who shall attempt or offer to make any settlement or 
 compromise of any revocation proceeding, except as above pro- 
 vided, or shall demand or receive or offer to receive, directly or 
 indirectly, any money or other thing of value as a consideration for 
 not commencing or prosecuting any proceeding for the cancella- 
 tion of a liquor tax certificate, shall be guilty of a misdemeanor. 
 
 In case a liquor tax certificate is surrendered pursuant to an 
 injunction order, or otherwise, during the pendency of a cancella- 
 tion proceeding, and the petitioner shall be unsuccessful in the 
 proceeding, the final order shall provide that a pro rata rebate 
 be paid to the certificate-holder for the actual time that the liquor 
 traffic was suspended imder the injunction order. 
 
 The State Commissioner of Excise must be made a party to all 
 proceedings instituted for the purpose of canceling or revoking 
 a liquor tax certificate and is entitled to due notice of all pro- 
 ceedings from all other parties to such proceeding and must be 
 duly served with copies of all papers and pleadings. 
 
 It is not necessary that a person shall have been criminally 
 prosecuted and convicted for a violation of the Liquor Tax Law 
 in order to lay the foundation for a proceeding to cancel and 
 revoke his liquor tax certificate. 
 
 In order to revoke a liquor tax certificate for false statements, 
 it must be shown that such statements were material to the appli- 
 
54 Digest of the 
 
 cant's right to traffic. If they are both material and false, the 
 good intentions of the applicant will not deter the court from 
 revoking the certificate and thus terminating the unlawful traffic. 
 (Matter of Zinzow v. Schmidt, 18 Misc. Kep. 653; Matter of 
 Clement v. Briggs, 53 Misc. Eep. 358; Matter of Deuel v. Smith, 
 
 55 Misc. Kep. 618.) If, for instance, an applicant should state 
 his age as 30 years whereas, in fact, he was 40 years old, this 
 statement, although false, would not be material, because a person 
 30 years of age has as much right to traffic in liquors as a per- 
 son who is 40 years old; but if the applicant should state that 
 he was over the age of 21 years whereas, as a matter of fact, 
 he was under that age, such statement would be both false and 
 material, because the Law provides that no person shall traffic in 
 liquors who is under the age of 21 years. The following are 
 some of the false statements that would be deemed material, and 
 afford sufficient ground for revoking a liquor tax certificate: 
 
 A false statement as to the owner of the premises in which 
 traffic in liquors is to be carried on; a false statement as to the 
 number of dwelling-houses within 300 feet of the proposed place 
 of traffic in a case where it is necessary to obtain and file con- 
 sents of dwelling-owners (Matter of McMonagle v. Wainwright, 
 41 Misc. Eep. 40 Y; Matter of Clement v. Briggs, 53 Misc. Eep. 
 358 ; Matter of Clement v. Ferdinand and Seedorf, 58 MJsc. Kep. 
 638) ; a false statement affecting the right to traffic within 200 
 feet of a church or schoolhouse (Matter of Zinzow v. Schmidt, 18 
 Misc. Eep. 653 ; Matter of Lyman v. Fuhrmann, 34 App. Div. 
 389) ; a false statement as to the structural qualifications of a 
 building in which traffic in liquors as a hotel-keeper is to be 
 conducted (Matter of Place v. Matty, 27 App. Div. 561 ; Matter 
 of Eyon v. Auchmoody, 39 Misc. Eep. 698; affirmed, 85 App. 
 Div. 621 ; Matter of McMonagle v. Wainwright, 41 Misc. Eep. 
 40Y. But see Matter of Purdy v. Driscoll, 40 App. Div. 133) ; 
 a false statement that the applicant has not been convicted of a 
 felony, or that he is a citizen of the United States and a resident 
 of the State of New York ; a false statement as to the filing of a 
 notice of abandonment affecting the right to traffic at the prem- 
 ises upon -an application for a subdivision 1 certificate; a false 
 statement as to the revocation or forfeiture for gambling or dis- 
 
LiQUOK Tax Law. 55 
 
 order of a liquor tax certificate held for the premises within one 
 year immediately preceding the application. 
 
 If a material statement is true when made, but false when the 
 application statement is presented to the certificate issuing ofii- 
 cer and acted upon by him, the certificate can be canceled and 
 revoked. 
 
 If statements are false when made and at the time the certifi- 
 cate is issued the applicant is bound by them and a subsequent 
 compliance with the statute does not release him from the penalty 
 of having his certificate revoked. (Matter of Bridge v. Mohr- 
 mann, 36 App. Div. 533 ; Matter of Lord v. Coughlin, 32 Misc. 
 Eep. 223 ; Matter of Barnard v. Elvers, 48 App. Div. 423. But 
 see Purdy v. DriscoU, 40 App. Div. 133.) 
 
 If any provision of the Liquor Tax Law is violated at the cer- 
 tificated premises by the certificate-holder, — or by his bartender, 
 agent, servant or employee, with or without the knowledge or 
 consent of the certificate-holder, — the certificate may be can- 
 celed and revoked. It may be revoked even if the bartender dis- 
 regards express instructions to observe the law. (Matter of Cul- 
 Hnan v. McCue, 39 Misc. Rep. 636; Matter of Lyman v. Veeder, 
 29 Misc. Eep. 524.) 
 
 Some of the violations committed at, the premises for which a 
 certificate can be canceled and revoked are as follows: 
 
 For having screens or other obstructions in the barroom win- 
 dows during prohibited hours; or, for permitting the premises to 
 be disorderly; or, for permitting gambling therein; or, for know- 
 ingly having any one convicted of a felony employed in the con- 
 duct of the liquor business; or, for selling liquors after a cer- 
 tificate has been surrender for rebate; or, for selling liquors to 
 any minor under the age of 18 years ; or, to an intoxicated persojn 
 or an habitijal drunkard or an Indian or any person to whom the 
 certificate-holder has been forbidden to sell by a notice in writing 
 as provided by the Law; or, for selling liquors at any time on 
 Sunday, unless the certificate-holder can show that the liquors 
 were sold during proper hours to bona fide guests of his hotel ; 
 or, for selling liquors on any week day during prohibited hours, 
 etc. 
 
5G Digest of the 
 
 A proceeding to cancel and revoke a liquor tax certificate is a 
 civil and not a criminal proceeding and the alleged violation 
 mnst, therefore, be proved by a fair preponderance of the evidence 
 and need not be established beyond a reasonable doubt. (Matter 
 of Cullinan v. Niederstein, 88 App. Div. 6 ; Matter of McCusker 
 V. McCusker, 4Y App. Div. 111.) 
 
 CHAPTER XXI. 
 
 Injunctions. 
 
 Provision is made in the statute for the granting of an injunc- 
 tion order upon the verified petition of the State Commissioner 
 of Excise or any taxpayer residing in the city, borough, village 
 or town where it is claimed the liquor trafiie is being carried on 
 in violation of law. (§ 28.) The petition must show either: 
 (1) That the person complained against is unlawfully trafiicking 
 in liquors without obtaining a liquor tax certificate; or, 
 
 (2) Is trafficking in liquors under a certificate but in violation 
 of one or more of the provisions of the statute. 
 
 Upon the presentation of the verified petition, the justice, judge 
 or court to whom it is presented shall grant an order requiring 
 the person complained of to appear before the justice, judge or 
 coiirt, or before the Special Term of the Supreme Court of the 
 judicial district, on a day specified therein, not more than ten 
 days after the granting of the order, and show cause why such 
 person should not be permanently enjoined from trafficking in 
 liquor until a liquor tax certificate has been obtained or why 
 such person should not be permanently enjoined from trafficking 
 in liquors under a certificate but contrary to the provisions of 
 the statute. 
 
 A copy of such petition and order must be served upon the 
 alleged violator in the manner directed by the order, and not 
 less than five days before the return day thereof. On the return 
 day, the justice, judge or court before whom the order is re- 
 turnable shall hear the proofs of the parties and may, if deemed 
 necessary or proper, take testimony in relation to the allegations 
 of the petition. 
 
LiQUOE Tax Law. , 57 
 
 If the allegations of the petition are sustained, an order shall 
 be granted in accordance therewith. The violation of such order 
 is a contempt of court and punishable in the manner provided by 
 the Judiciary Law. Costs upon the application for such an injunc- 
 tion may be awarded in favor of and against the parties thereto 
 in such sums as the judge, justice or court may deem proper. 
 
 But no such injunction proceeding will lie against a person 
 who, being already the holder of a certificate, presents his appli- 
 cation statement and bond and pays the required tax for a new 
 certificate on or before the 15th day of September and continues 
 to trafiic for ten days immediately following the 1st day of 
 October, unless within said period of ten days the application 
 for the new certificate is refused and notice in writing is given 
 the applicant. 
 
 Injunction being a preventive remedy will not be granted 
 merely upon proof of isolated violations committed long prior to 
 the commencement of the proceeding. An injunction will not 
 issue to prohibit the defendant from doing what he has ceased 
 to do and what it is evident he does not intend to do. (Matter 
 of Hunter v. Caffrey, 34 Misc. Eep. 389.) 
 
 It should be shown in the verified petition that the person com- 
 plained of is committing the illegal acts, and that there is reason 
 to believe that he will continue to do so. An application for, 
 and the granting of, an injunction, in the manner above specified, 
 is a proceeding in and of itself, separate and distinct from the 
 proceeding provided by the statute for the cancellation and revo- 
 cation of a liquor tax certificate. It is not often invoked because 
 somewhat technical. It does not often happen that a person will 
 persist in selling liquors without having obtained a proper certifi- 
 cate. Such a violation is, of course, punishable criminally and 
 that is the remedy usually followed. 
 
 On the other hand, if a person holding a certificate violates 
 the law, the usual remedy is to institute a proceeding to cancel 
 and revoke the certificate, and in such a proceeding, an injunc- 
 tion may be obtained as a part of the proceeding, in any case 
 where it could be obtained in any independent proceeding of the 
 kind discussed in this chapter. 
 
58 Digest of the 
 
 CHAPTER XXII. 
 
 Persons to Whom Liquors Shall Not be Sold or Given Away. 
 (Sees. 29 and 30-a.) 
 
 It is unlawful for any person, whether he holds a liquor tax 
 certificate or not, to sell, deliver or give away or cause or permit 
 or procure to be sold, delivered or given away, any liquors of any 
 kind: (1) To a minor under the age of 18 years, or to any 
 minor for the use of any other person; 
 
 (2) to any intoxicated person; 
 
 (3) to any habitual drunkard; 
 
 (4) to any Indian; 
 
 (5) to any person to whom it is forbidden to sell, by written 
 notice, signed by the parent, guardian, husband, wife or child of 
 such person^^ The child, in order to give a valid notice, must 
 be over 16 years of age. Such a notice may also be given 
 by a magistrate or overseer of the poor of a town, provided that 
 in such case the notice shall apply only to a person who is solely 
 or partly a charge upon the town, which fact must be stated in 
 the notice; 
 
 (6) to any person confined in or committed to a State prison, 
 jail, penitentiary, house of refuge, reformatory, protectory, in- 
 dustrial school, asylum or State hospital or any inmate of a poor- 
 house, or any patient in any colony or institution established for 
 the care or treatment of epileptics, except in a case where a physi- 
 cian to such institution gives a written prescription, specifying 
 the cause for which the prescription is given, and the quantity and 
 kind of liquor which is to be furnished to the person named, and 
 the time or times for which the same shall be furnished, and such 
 prescription shall be given only when necessary for the health of 
 the person for whose use it is prescribed and that fact must be 
 stated in the prescription. 
 
 (7) to any United States cadet in uniform, within half a mile 
 of the grounds of the United States military academy at West 
 Point; or to a person known to be a United States cadet who is 
 stationed at such academy. (Amendment 1911, known as § 30a.) 
 
LiQuoE Tas Law. 59 
 
 The sale of liquor to a minor under the age of 18 years 
 is a crime, notwithstanding the fact that the vendor may have 
 acted in good faith and have had good reason for believing that the 
 customer was of proper age, (People v. Werner, 174 N. Y. 132.) 
 It is necessary to establish : 
 
 (1) The sale of liquors and (2) the age of the minor as being 
 less than 18 years. When the latter fact appears only by 
 the testimony of the minor himself, his previous conflicting state- 
 ments as to his age make it hardly safe to allow a conviction to 
 stand. (People v. Andrus, 74 App. Div. 542.) It is to be ob- 
 served that it is a violation of the statute, not only to sell liquors 
 to a minor under the age of 18 years, bvit also to give or 
 deliver liquors to such a minor, either for his own use or for the 
 use of any other person. In other words, it would be no defense 
 to show that the minor was acting in the transaction as agent for 
 some one else, because the mere delivery of the liquors is sufficient 
 to establish the crime. 
 
 In serving the notice to be given by the parent, guardian, hus- 
 band, wife or child of the person to whom it is desired to forbid 
 the selling or giving of liquors, the statute does not require that 
 any particular form be followed. A notice addressed to the per- 
 son or persons upon whom it is intended to serve the same, setting 
 forth the relationship of the person signing the notice to the per- 
 son to whom it is forbidden to sell, and expressly forbidding the 
 selling, delivering or giving away of any liquors to the forbidden 
 person, to be named in the notice, would be sufficient. The notice 
 should be dated, properly signed and served personally, if possible, 
 upon the certificate-holder. 
 
 CHAPTER XXIII. 
 Illegal Sales and Other Violations. 
 
 Exceptions That Make Ceetain Sunday Sales Lawful. 
 
 It is unlawful for any person who has not paid the required tax 
 and obtained and posted a proper liquor tax certificate to sell, 
 offer or expose for sale, or give away liquors in any quantity less 
 than five wine gallons at a time. (§ 30.) 
 
 It is unlawful for any person who has not paid the required tax 
 and complied with all the provisions of the Law to sell, offer or ex- 
 
60 Digest of the 
 
 pose for sale, or give away, liquor m any quantity whatever if any 
 part of the liquors so sold is to be drunk on the premises of the per- 
 son selling the liquors or in any outbuilding, booth, yard or garden 
 appertaining thereto, or connected therewith. (§ 30.) 
 
 It is unlawful for any person whether he has paid the required 
 tax or not to sell, offer or expose for sale, or give away, any liquor 
 on Sunday or before six o'clock in the morning on Monday. 
 (Clavise A, § 31.) There are three exceptions to this prohibi- 
 tion, viz.: (1) The holder of a subdivision 1 certificate who is 
 the keeper of a hotel may sell liquors to the guests of his hotel on 
 Sunday but not in the barroom or other similar room of such 
 hotel (provided such guest is not an infant, habitual drunkard, 
 Indian or other prohibited person), and provided the liquors are 
 sold to such guests with their meals or in their rooms. But a 
 sale of liquors to guests on Sunday as aforesaid cannot be made 
 in cities of the first and second class between the hours of one 
 o'clock and six o'clock in the morning, nor in any other place be- 
 tween the hours of twelve o'clock midnight and six o'clock in the 
 morning. (Clause N, § 30.) This has reference to Sunday sales 
 iOnly. Hotel keepers in places with less than 5000 inhabitants 
 cannot sell after 11 p. m. Siinday. 
 
 (2) the holder of a subdivision 2 or 3 certificate who is a 
 legally licensed pharmacist may sell liquors on Sunday for 
 medicinal purpose, only upon the prescripion of a duly licensed 
 physician, which prescription shall be preserved and pasted in a 
 book and be but once filled, and that only on the day when dated 
 and given, and the liquors so sold shall not be drunk on the prem- 
 ises where sold, except when the physician prescribes it to be used 
 upon the premises in case of an accident, and the prescription 
 states that the physician is satisfied that the liquor to be furnished 
 is necessary fox the health of the person for whom it is prescribed. 
 Such physician shall not be the pharmacist himself or a member 
 of the corporation, association or copartnership selling such 
 liquor nor in his or their employ. (Clause M, § 30.) 
 
 (3) a corporation or association organized in good faith under 
 chapter 559 of the Laws of 1895, or under any law which prior to 
 May 6, 1895, provided for the organization of societies or clubs 
 
LiQuoE Tax Law. 61 
 
 for social, recreative or similar purposes may, if the holder of a 
 subdivision 1 certificate, traffic in liquors at any time on Sunday 
 with its members, but such corporation or association must have 
 been actually organized and if a corporation its certificate of in- 
 corporation duly filed, prior to March 23, 1896. (Clause 0, § 30.) 
 
 It is unlawful to sell liquors on any week day between one 
 o'clock and six o'clock in the morning in cities of the first and 
 second class; in cities of the third class and in villages of over 
 5,000 inhabitants, it is unlawful to sell liquors on week days be- 
 tween twelve o'clock midnight and six o'clock in the morning, 
 and, in all other places, it is unlawful to sell liquors on week 
 days between eleven o'clock in the evening and six o'clock in the 
 morning. (Clause B, § 30.) 
 
 It is unlawful for any person to solicit, accept or procure in a 
 " no-license " town or in a town where subdivision 3 traffic only is 
 permitted, an order to deliver or send to another or for another 
 liquor in any quantity, where the person for whom such liquor is 
 procured resides in any such town. This prohibition is intended 
 to prevent any person going into a " no-license " town or tovra 
 where subdivision 3 traffic only is permissible and there soliciting 
 or taking orders for any kind of liquor, in any quantity whatso- 
 ever, to be sent to a resident of such town. (Clause K, § 30.) 
 
 It is unlawful for the holder of a subdivision 4 liquor tax cer- 
 tificate to sell liquor except to passengers in actual transit. 
 (Clause I, § 30.) 
 
 It is unlawful for any person to permit any girl or woman, or 
 any minor under the age of eighteen years, who is not a member 
 of the family, or to knowingly permit any person who has been 
 convicted of a felony, to sell or serve any liquor upon the prem- 
 ises, or to permit any person to whom it is forbidden to sell or 
 give away liquors (such for instance as an habitual drunkard, in- 
 toxicated person, Indian, minor under the age of 18 years) to 
 enter and remain in any barroom where liquors are sold. ( Clause 
 F, § 30.) 
 
 It is urdawful for any person to have opened or unlocked any 
 door or entrance from the street, alley, etc., or adjoining premises 
 to the room or rooms where any liquors are sold or kept for sale, 
 
 3 
 
62 Digest op the 
 
 during the hours when the sale of liquors is forbidden, except when 
 necessary for the egress or ingress of the certificate-holder or mem- 
 bers of his family or his servants, who may enter for lawful pur- 
 poses ; it is also unlawful to admit to such room or rooms any other 
 persons during the hours when the sale of liquors is forbidden. 
 (Clause Q, § 30.) 
 
 It shall not be lawful for the keeper of a hotel, boarding or lofig- 
 ing-house, who also traffics in liquors thereat, to rent more than 
 once a bedroom or other similar room between the hours of nine 
 o'clock in the evening and six o'clock in the morning; or to rent 
 such room or rooms for the purpose of prostitution or to a woman 
 known or reputed to be a prostitute, and it shall be unlawful to 
 allow any such room to be occupied by more than one party of 
 one or more persons during that period. It is also unlawful to 
 knowingly rent or assign a room to a person signing a fictitious 
 name or writing a fictitious home address on the register. (Clause 
 L, § 30.) 
 
 It is unlawful to sell or expose for sale or have on the premises 
 where liquor is sold, any liquor which is adulterated with any 
 deleterious drug, substance or liquid which is poisonous or 
 injurious to health. (Clause E, § 30.) 
 
 It is unlawful to suffer or permit any gambling in the certifi- 
 cated premises or in any yard, booth, garden or any other place 
 appertaining thereto, or connected therewith, or to allow any 
 opening or means of entrance or passageway for persons or 
 things between the room or place where the traffic in liquors is 
 carried on and any other room or place where any pelrson whoso- 
 ever suffers or permits any gambling. (Clause E, § 30.) 
 
 It is unlawful to suffer or permit the certificated premises to 
 become disorderly or to suffer, permit or allow any opening o: 
 means of entrance or passageway for persons or things between 
 the room or place where the liquor traffic is carried on, and any 
 other room or place which any person whosoever suffers or permits 
 to become disorderly. (Clause E, § 30.) 
 
 It is unlawful for any person engaged in the liquor traffic to 
 carry on or permit to be carried on, or to be interested in, any 
 traffic, business or occupation, the carrying on of which is in vio- 
 lation of law. (Clause E, § 30.) 
 
LiQuoB Tax Law. 63 
 
 It is unlawful to have during prohibited hours any screen, 
 blinds, etc., covering any part of the window of the barroom; or 
 any obstruction back of the window that prevents a full view of the 
 barroom or to traffic in any interior bar or room unless a section 
 of the principal door of entrance thereto is fitted with clear glass, 
 etc., or to have any box or stall in the barroom at any time that pre- 
 vents a full view of same by every person present therein. (Clause 
 H, § 30.) 
 
 What constitutes gambling and what acts make the premises 
 disorderly, within the meaning of the Liquor Tax Law, are treated 
 in detail in chapter XXIV. 
 
 CHAPTER XXIV. 
 
 Gcunbling and Disorder. 
 
 The penalties imposed under the statute for permitting cer- 
 tificated premises to become disorderly or for allowing gambling 
 therein are very severe. Not only may the certificate be revoked 
 and the penalty of the bond recovered, but the revocation or for- 
 feiture of the certificate on either of said grounds operates as an 
 absolute bar against traffic in liquors at the premises by any per- 
 son for one year (paragraph 8, § 15) and under certain circum- 
 stances constitutes a permanent bar against traffic thereat. (Sub- 
 division 2, § 23. See chapter XVI, under heading " Churches 
 and Schoolhouses.") In addition to these civil penalties, such 
 violations may be prosecuted criminally. It is, therefore, im- 
 portant to know just what the terms " gambling " and " dis- 
 orderly " mean under the Liquor Tax Law. 
 
 Gambling. The holder of a certificate must see to it not only 
 that gambling, as defined in the Penal Law, does not occur in his 
 premises, but he must not suffer any gambling on the premises. 
 (Matter of CuUinan v. Peck & Beebe, 114 App. Div. 654; Cle- 
 ment V. Belanger, 120 App. Div. 662; Lyman v. Kurtz, 166 
 N. Y. 274.) Not only must there be no gambling upon the 
 premises or in any yard, booth, garden or any other place apper- 
 taining thereto or connected therewith, but, by an amendment 
 to the law in 1908, it is unlawful to suffer or permit any open- 
 ing or entrance for persons or things between the room where 
 
64 Digest of the 
 
 the liquor traffic is carried on and any other room or place where 
 any person whosoever sutlers or permits any gambling. In other 
 words, a certificate-holder must not permit his place of traffic 
 to be conducted in connection with any room or place where 
 another person carries on gamblings 
 
 The place where liquor is sold is not deemed by the Legisla- 
 ture a suitable locality for gambling in any form. The people 
 of the State, it is true, sustain no direct pecuniary injury from a 
 game of cards for money between private individuals in a liquor 
 saloon, yet just such an act is one of those which the Law ex- 
 pressly prohibits. 
 
 The playing of cards or pool or billiards or any other game 
 " for the drinks " or for money, or for any other property, is 
 gambling within the meaning of the Law; so also is the raffling 
 of watches, the guessing of the number of coins or other objects 
 in a receptacle, or the shaking of dice " for the drinks " or for 
 money, or for other property. 
 
 Of course the playing of cards, pool or billiards simply as a 
 pastime, there being no money or any other property at stake, 
 either directly or indirectly, would not constitute gambling. 
 
 The operation of a slot machine in any certificated premises 
 constitutes gambling. The act of the bartender in allowing a 
 slot machine to be placed in a saloon and to be gambled upon 
 makes the certificate-holder liable. The failure of the certificate- 
 holder to prevent the operation of the machine makes out a case 
 against him. (Matter of CuUinan v. ISTiederstein, 88 App. 
 Div. 6.) 
 
 Several machines have been placed upon the market under 
 various names with the claim that they could be legally operated 
 in certificated premises, because they were not gambling devices. 
 Whenever such a claim is made, it is not a difficult matter for a 
 certificate-holder to determine whether or not it is true. Let 
 him apply this test : Does the person who operates the machine, 
 or in whose behalf it is operated, stand to win, by chance, a sum 
 in excess of the amount he ventures ? Does the machine directly 
 or indirectly distribute property by the element of luck or chance 
 to those who have paid something in order to reap any benefit 
 that may accrue if chance favors them? If these questions are 
 
LiQuoB Tax Law. 65 
 
 answered in the aiBrma'tive tlie machine is a gambling device 
 within the meaning of the Law. 
 
 To constitute gambling, the element of chance must enter. 
 One side or the other or both must win or lose. In a recent case 
 (Matter of CuUinan v. Peck & Beebe, 114 App. Div. 654) in 
 which a certain type of slot machine was held to be a gambling 
 device, it appeared that the machine returned at least one ticket 
 calling for a nickel's worth of trade for every nickel inserted in 
 it and sometimes returned a ticket calling for a larger amount 
 in trade. The court said " the chief element of gambling is the 
 chance or uncertainty of the hazard. The chance may be in 
 winning at all, or in the amount to be won or lost. In using the 
 present machine, one may assume that the player cannot lose. 
 By far, the greater majority of the checks called in trade for the 
 precise sum deposited in the slot. If every ticket represented five 
 cents, the machine would not be patronized. The bait or induce- 
 ment is, that the player may get one of the checks for a sum in 
 excess of the nickel he ventures, and that is the vice of the 
 scheme. If he wins more than he pays, the proprietor must lose 
 on that discharge of the ticket. To constitute gambling, it is not 
 important who may be the loser." It is not important whether 
 the wager is for cigars or other merchandise or for money. 
 
 Disorderly. The business of trafficking in liquors must be 
 conducted in an orderly manner and no portion of the certificated 
 premises allowed to become disorderly. The certificate-holder 
 must prevent his premises from becoming disorderly. Not only 
 must he prevent the certificated premises from becoming dis- 
 orderly but he must not allow his premises to be connected by 
 any means of entrance for persons or things with any other prem- 
 ises which another person permits to become disorderly. 
 
 The law requires not only that the certificate-holder will not 
 jnaintain a disorderly house upon the premises, but that he will 
 not " suffer or permit such premises to become disorderly." 
 
 The premises may become disorderly within the meaning of 
 the Law by permitting a cocking main to be held thereon, or a 
 prize fight, or a dog fight, or frequent brawls that disturb the 
 neighborhood. 
 
66 Digest of the 
 
 Proof that a restaurant maintained by the defendant was fre- 
 quented by men addicted to drink ; that they became intoxicated 
 there; that quarrels were of common occurrence, and that inde- 
 cent language used on the premises could be heard by those living 
 in the neighborhood, establishes the crime of keeping a disorderly 
 house. (People v. Jones, 129 App. Div. 772; affirmed, 195 
 ISr. Y. 547.) 
 
 This was a criminal conviction under the Penal Law, where it 
 was necessary to prove the commission of the crime beyond a 
 reasonable doubt. 
 
 In a proceeding to revoke a liquor tax certificate, or in an 
 action on a liquor tax bond, or to recover a penalty, under the 
 provisions of the Liquor Tax Law, it is not necessary to establish 
 the case beyond a reasonable doubt. It is enough if it is estab- 
 lished by a preponderance of the evidence. 
 
 The certificate-holder must perform an afiirmative act, in that 
 he must prevent his premises from becoming disorderly. (Cle- 
 ment V. Federal Union Surety Co., 122 App. Div. 18.) 
 
 The disorderly reputation of premises may be proved from the 
 " speech of people." (People v. Hart, 115 App. Div. 896.) 
 
 Conversations with lewd women must be brought home to cer- 
 tificate-holder or employee. (Matter of Clement v. Kane, iN". Y. 
 Law Jour., July 13, 1909.) 
 
 But the proprietor of a place where liquor is sold cannot, by 
 absenting himself, escape the consequences if place becomes dis- 
 orderly. (People ex rel. Coffey v. Brown, unreported opinion. 
 Justice Wahle.) 
 
 The hotel register may furnish evidence of the fact that the 
 premises are disorderly. (Matter of Clement v. Vastola, unre- 
 ported decision. Justice Kelly, July, 1909.) 
 
 Evidence of disorder may be found in the fact that prostitutes 
 are permitted to frequent the place unescorted; that conversa- 
 tions of a lewd character are conducted so as to be generally 
 heard; that women pass from one table to another and permit 
 different men to buy them drinks and carry on vulgar or inde- 
 cent conversations with them; that vulgar or indecent acts are 
 committed on the premises, etc., etc. 
 
Liquor Tax Law. 67 
 
 CHAPTER XXV. 
 Forfeiture or Revocation of a Liquor Tax Certificate. 
 A liquor tax certificate is forfeited only by a criminal con- 
 viction. A certificate is revohed in a civil proceeding. " Eevo- 
 cation " and " cancellation " have about the same meaning. A 
 certificate is canceled and revoked in a civil proceeding and for- 
 feited as the result of a criminal conviction. When the word 
 " revoked " or " revocation " is used in this chapter, the meaning 
 is the same as if the words " revoked and canceled " or " revo- 
 cation and cancellation " were used. 
 
 (1) Revocation of a certificate. A certificate is revoked in a 
 civil proceeding instituted either by the State Commissioner of 
 Excise or by any taxpayer of the city, borough, village or town 
 in which the certificated premises are located, provided such tax- 
 payer occupies or owns a dwelling situate within 300 feet of the 
 certificated premises. (Sub. 2, § 27.) 
 
 (2) Forfeiture of a certificate. A person who is convicted 
 (that is, prosecuted criminally and found guilty) of a violation 
 of the Liquor Tax Law forfeits the certificate held by him at 
 the date of his conviction. (Sub. 2, § 36.) 
 
 If the person convicted is a pharmacist holding a license issued 
 by a board of pharmacy, the said pharmacist's license is also for- 
 feited. (Sub. 2, § 36.) 
 
 If the holder of any liquor tax certificate is convicted of keep- 
 ing a disorderly house or of gambling or of the same or any 
 similar offense prescribed in any municipal ordinance, or if such 
 holder is convicted of any felony whatsoever, he forfeits any and 
 every liquor tax certificate held by him at the time of such con- 
 viction and is deprived of all rights and privileges thereunder. 
 (Sub. 7, § 36.) 
 
 If any clerk, agent, employee or servant of the holder of a 
 liquor tax certificate shall commit any of such offenses at a place 
 for which a liquor tax certificate has been issued and be con- 
 victed thereof, the holder of such certificate shall forfeit the same 
 (that is ito say, the certificate issued for the place at which the 
 offense occurs), and be deprived of all rights and privileges there- 
 under. (Sub. 7, §, 36.) 
 
68 Digest of the 
 
 If within a period of two years, there shall be two convictions 
 of clerks, agents, employees or servants of a certificate-holder for 
 a violation of the Law, the liquor tax certificate of the principal 
 held by him at the date of the second conviction shall be forfeited 
 and the said principal deprived of all rights and privileges there- 
 under. (Sub. 3, § 36.) 
 
 How Eight to Teaffig at Premises is Affected by 
 
 FOKFEITDEE OE REVOCATION OF CeETIFICATE. 
 
 The revocatio]! or forfeiture of a liquor tax certificate does 
 not prevent another application being made immediately by a 
 proper person for a new certificate for the premises except in the 
 following cases : 
 
 If a certificate is revoked or forfeited on the ground that the 
 certificated premises were permitted to become disorderly or tjtiat 
 gambling was allowed therein, no new certificate can be issued 
 for such premises to any person whomsoever, nor can traffi(3 in 
 liquors be legally carried on therein, for a period of one year 
 from the date of the revocation or forfeiture (subdivision 8, 
 § 15) ; and if it so happens that the certificated premises are 
 on the same street or avenue and within 200 feet of a 
 church or schoolhouse, the revocation or forfeiture of the certifi- 
 cate on either of the grounds last above mentioned constitutes a 
 permanent bar and prohibition against the traffic at the premises 
 by any one, except that, in the case of a church, if, after the 
 expiration of one year, the proper church authorities consent, a 
 new certificate may be procured. (Sub. 2, § 23.) 
 
 It will be seen, therefore, that the forfeiture or revocation of 
 a liquor tax certificate on the ground of illegal Sunday sales or 
 trafficking during prohibited hours on week days, or on the ground 
 of illegal sales to minors, or maintaining screens, blinds or stalls, 
 or in fact for any violation of the Law, except permitting the 
 premises to become disorderly or allowing gambling therein, does 
 not prevent another certificate from being issued at once for the 
 premises to a proper person, and an application for a new certifi- 
 cate may be made in all respects as if there had been no forfeiture 
 or revocation, unless the applicant is a member of the family or 
 servant or employee of the former certificate-holder, in which case, 
 
Liquor Tax Law. 69 
 
 new consents of dwelling-owners must be obtained and filed if 
 the application for the new certificate is made within one year 
 after the revocation or forfeiture. (Sub. 8, § 15.) 
 
 If, however, the certificate forfeited or revoked was a sub- 
 division 3 certificate, held by a licensed druggist, no other sub- 
 division 3 certificate shall be issued to any person to trafiic at 
 such premises for the term of one year from the date of the for- 
 feiture or revocation. (Sub. 2, § 36.) 
 
 The discontinuance of the liquor traffic for one year or less 
 because of the forfeiture or revocation of a certificate on the 
 ground that the premises were permitted to become disorderly 
 or that gambling was allowed therein is not deemed an abandon- 
 ment of the traffic, and if the premises are not on the same street 
 or avenue and within 200 feet of a church or schoolhouse, a 
 new certificate may be procured at the expiration of the year 
 in the same manner as if there had been no such forfeiture or 
 revocation, provided the premises have not, in the meanwhile, 
 lost their character as a place for the traffic in liquors; that is 
 to say, have not, for instance, been converted into an apartment- 
 house, or grocery store, or other place ©f business. (Sub. 8, 
 § 15.) 
 
 How FOEFEITUEE OB REVOCATION AfFECTS FuTUEB EiGHTS OF 
 
 Holder of Forfeited or Eevoked Certificate. 
 
 No person who is convicted of a violation of the Liquor Tax 
 Law, or who shall have a liquor tax certificate revoked in a civil 
 proceeding, shall be entitled to receive another certificate until 
 the expiration of one year from the date of the forfeiture or 
 revocation, (Clause D, § 21.) 
 
 A person whose agent or agents shall be twice convicted within 
 a period of two years for a violation of the Law shall not be en- 
 titled to receive another certificate until one year from the date 
 of the second conviction. (Clause E, § 21.) 
 
 No corporation, association or copartnership which has been 
 or shall be convicted for a violation of the Law shall be entitled 
 to receive another certificate until three years from the date of 
 the conviction. (Clause E, § 21.) 
 
YO Digest of the 
 
 A person convicted of a felony is forever thereafter prohibited 
 from trafficking in liquors. (Clause A, §. 21.) 
 
 No person vrho has been convicted for a violation of the Liquor 
 Tax Lavr can legally become a surety on a liquor tax bond until 
 the expiration of three years from the date of such conviction. 
 (Sub. 4, § 36.) 
 
 CHAPTER XXVI. 
 
 Sale of Liquor Tax Certificate and Changing Place of Traffic. 
 (§§ 25 and 26.) 
 
 The holder of a subdivision 1, 2, 4 or 7 liquor tax certificate 
 may sell and transfer such certificate during the time for which 
 it vfas granted, to any person not forbidden to trafiic in liquors, 
 and such person may thereupon continue to carry on the busi- 
 ness for vrhich the certificate was issued during the balance of 
 the term thereof at the certificated premises, in the same manner 
 as if such person were the original applicant for the certificate. 
 The sale and transfer of a certificate must be made in the fol- 
 lowing manner: The holder presents to the certificate issuing 
 ofiicer a petition on a form prepared by the State Depart- 
 ment of Excise, requesting that the certificate be transferred to 
 the purchaser thereof and setting forth certain facts showing the 
 .right of the certificate-holder to make the transfer. There must 
 also be presented a consent in writing, executed and acknowledged 
 by any person to whom such certificate has been transferred or 
 assigned as collateral security for moneys loaned or any other ob- 
 ligation incurred. (Amendment of 1911.) 
 
 The proposed purchaser of the certificate must file a new appli- 
 cation statement and bond; the certificate itself must be taken to 
 the officer who issued it, or his successor in office, and such offi- 
 cer must write or stamp across the fact of the certificate, over his 
 signature, the words, " Consent is hereby given for the transfer 
 of this certificate to " For making this in- 
 dorsement, the officer is entitled to a fee of $10. 
 
 If the holder of a liquor tax certificate shall desire to transfer 
 the certificate to other premises in the same city, borough or town 
 (the amendment of 1911 added the word "boroiigh"), and there 
 continue to carry on the business for which the certificate was is- 
 
LiQuoE Tax Law. 71 
 
 sued, he is required to file a petition on a form prepared by the 
 State Department of Excise requesting that the transfer from 
 fplace to place be made, and there must also be filed a consent in 
 writing, executed and acknowledged by any person to whom such 
 certificate has been transferred or assigned as collateral security 
 for moneys loaned or any other obligation incurred. (Amend- 
 ment of 1911.) A new application statement and bond covering 
 the new premises must be filed and the certificate itself must be 
 presented to the officer who issued it, or his successor in office, and 
 such officer shall stamp or write over his signature, across the face 
 of the certificate, the words, " The traffic in liquors permitted to 
 be carried on under this certificate is hereby transferred from 
 (here insert the description of the original locality) to (here in- 
 sert the description of the new locality)." 
 
 For making this indorsement, the certificate issuing officer is 
 entitled to a fee of $10. 
 
 Transfer from person to person and from place to place in 
 one transaction- If a person desires to purchase a liquor tax cer- 
 tificate and carry on the traffic at some other place than that 
 named in the certificate, he may now accomplish this object in 
 one transaction, whereas, heretofore, two transactions were neces- 
 sary, involving the filing of two sets of application papers, and the 
 payment of two indorsement fees. 
 
 By virtue of the amendment of 1911, a person who desires to 
 purchase a liquor tax certificate and carry on the traffic at some 
 other place than that named in the certificate may file but one 
 application statement and one bond relating to, and covering, the 
 premises in which the traffic is to be carried on ; there must also 
 .be filed a consent in writing, executed and acknowledged by any 
 person to whom the certificate has been transferred or assigned as 
 collateral security for moneys loaned or any other obligation in- 
 curred. The liquor tax certificate must be presented to the officer 
 who issued it or to his successor in office, together with a petition 
 setting forth the facts, and such officer must write or stamp across 
 the face of the certificate, over his signature, the words " Consent 
 is hereby given for the transfer of this liquor tax certificate to 
 (here insert the name of the person to whom the same is trans- 
 ferred) and the traffic in liquor permitted to be carried on under 
 
72 Digest of the 
 
 this certificate is hereby transferred from (here insert the descrip- 
 tion of the original locality to (here insert the description of the 
 new locality)." For making this indorsement, the certificate is- 
 suing ofiieer is entitled to a fee of $10. 
 
 CHAPTER XXVII. 
 
 Death of Person, and Dissolution of Corporation or Copartner- 
 ship Holding a Liquor Tax Certificate. (§ 24.) 
 
 If a person who holds a liquor tax certificate shall die during 
 the term for which the certificate was issued, the administrator 
 or executor of the estate of such person may either surrender the 
 certificate for rebate, or continue to carry on the business during 
 the balance of the term of the certificate, upon complying with 
 the following requirements : 
 
 It has been the practice of the State Department of Excise to 
 allow the certificate to be actually delivered to the ofiieer who is- 
 sued it, at any time after the death of the certificate-holder, such 
 delivery to be followed by the presentation of a petition for the 
 rebate as soon as the executor or administrator is appointed, as 
 it is often several weeks before a representative of the estate of 
 .the deceased certificate-holder can be legally appointed. In such 
 a case the rebate is computed from the first day of the month fol- 
 lowing the date of the actual delivery of the certificate to the officer 
 who issued it or his successor in office. 
 
 If it is desired to continue to carry on the traffic at the prem- 
 ises instead of surrendering the certificate for rebate, it is neces- 
 sai'y for the executor or administrator to be duly appointed and 
 then petition, as such, for leave to continue the traffic. Such pe- 
 tition must be accompanied by a new application statement and 
 bond, executed and acknowledged by the administrator or ex- 
 ecutor as such, and the certificate must be taken to the officer who 
 issued it or his successor in office and if the papers presented are 
 correct in form, such officer will indorse upon the face of the cer- 
 tificate a permit that the traffic in liquors may be carried on by 
 the executor or administrator during the unexpired term of the 
 certificate. For making this indorsement, the officer is enti- 
 tled to a fee of $10. (§ 26.) 
 
Liquor Tax Law. 73 
 
 It has also been the practice of the State Department of Excise 
 to permit an executor or administrator, who has duly qualiiied, to 
 transfer the certificate to a third person, without having the cer- 
 tificate first transferred to the executor or administrator as such. 
 
 If a certificate-holder is adjudged to be incompetent and a 
 committee of his property is appointed, or if a certificate-holder 
 is adjudged to be bankrupt and a receiver or assignee of his prop- 
 erty is appointed, such committee, assignee or receiver may either 
 surrender the certificate for rebate, or continue to carry on the 
 traffic or transfer the certificate to a third person in the same 
 manner as in the case of an executor or administrator. (§ 24.) 
 
 If a corporation, association or copartnership has dissolved or 
 a receiver or assignee has been appointed therefor, such receiver 
 or assignee may surrender the certificate for rebate or continue to 
 carry on the traffic, or transfer the certificate to a third person in 
 the same manner as in the case of an administrator or executor. 
 (§ 24.) 
 
 In any case where the executor or administrator surrenders the 
 certificate for rebate or petitions to transfer same, or to continue 
 the traffic thereunder, there must also be filed the written con- 
 sent of the assignee of the certificate, if there be one; and such 
 written consent must also be filed in every case where a receiver or 
 assignee or committee surrenders the certificate for rebate, or 
 petitions to transfer same, or to continue the business thereunder. 
 (Amendment of 1911.) But this provision is not applicable to 
 subdivision four certificates. 
 
 CHAPTER XXVIII. 
 Screens, Blinds, Curtains and Stalls. (Clause H, § 30.) 
 
 It is unlawful to have during the hours when the sale of liquor 
 is forbidden any screens, blinds or any curtain or article or thing, 
 except the liquor tax certificate, covering any part of any window 
 of the bar or room where liquors are sold or kept for sale. 
 
 It will be observed that this is an absolute prohibition, and 
 that it makes no difference whether a person outside could have 
 a full view of the room or not. The mere fact that there is a 
 curtain or other article covering any part of any window of the 
 
74 Digest of the 
 
 bar or room where liquors are soM or kept for sale is a violation 
 of the Law. As was said by the court in Matter of Chapman v. 
 Moroney, 64 Misc. Rep. 440, " it is not denied that some portions 
 of the windows were covered with curtains at the time mentioned, 
 but it is claimed by the defendant that, through other portions of 
 the windows not covered by the curtains, a person passing the 
 place would have a full view from the sidewalk of the bar and 
 room where liquors were sold." The court held that this was a 
 violation whether or not it was proven that a sale of liquors had 
 taken place. It will be observed that the prohibition above set 
 forth does not relate to articles or things placed hack of the 
 window, but which might well prevent a full view of the bar- 
 room. There is, however, another prohibition to be considered, 
 viz. : It is unlawful, during prohibited hours, " to have in, near to 
 or hack of any window or door, any opaque or colored glass or 
 article or thing that obstructs, or in any way prevents, a person 
 passing from having a full view from the sidewalk * * * of 
 the bar and room, or any part of such bar and room, where liquors 
 are sold or kept for sale." 
 
 It will be seen that it is not a violation of the Law to have hack 
 of the window colored glass or other articles or things unless 
 they obstruct or prevent a person passing from having a full 
 view of each and every part of the barroom. For instance, it 
 would not be a violation of the Law for a certificate-holder to 
 have, during prohibited hours, a pyramid or other formation of 
 bottles or glasses or like articles near the window or back of the 
 window, unless such pyramid or other formation prevented a per- 
 son passing from having a full view of the barroom ; whereas, it 
 would be a violation of the Law for a certificate-holder to have, 
 during prohibited hours, any part of any window of his barroom 
 covered with a curtain, notwithstanding the fact that a full view 
 of the barroom could be had. 
 
 It is also unlawful to have, at any time in the room where 
 liquors are sold, any inclosed box or stall or any other obstruction 
 which prevents a full view of the entire room by every person 
 present therein. 
 
 It is also unlawful to trafiic in liquors in any interior bar or 
 room or place which does not have in the principal door of en- 
 
Liquor Tax Law. 75 
 
 trance thereto a section of the door fitted with clear glass through 
 which, during prohibited hours and times, a clear unobstructed 
 view of the bar and room where the liquors are sold and kept for 
 saJe can be had. 
 
 CHAPTER XXIX. 
 Hotel, Guests and Meals ; Registers. (§ 30.) 
 
 A hotel, within the meaning of the Law, is a building regularly 
 used and kept open as such for the feeding and lodging of guests, 
 where all who conduct themselves properly, and who are able 
 and ready to pay for their entertainment, are received, if there 
 be accommodations for them, and who, without any stipulated 
 engagement as to the duration of their stay, or as to the rate of 
 compensation, are, while there, supplied, at a reasonable charge, 
 with their meals, lodgings, refreshment and such service and 
 attention as are necessarily incident to the use of the place as a 
 temporary home, and in which the only other dwellers are the 
 family and servants of the hotel-keeper. The hotel building, if 
 situate in a city, incorporated village of 1,200 or more inhabit- 
 ants, or within two miles of the corporate limits of either, must 
 contain at least ten bedrooms above the basement, exclusive of 
 those occupied by the family and servants, each room properly 
 furnished to accommodate lodgers and separated by partitions at 
 least three inches thick extending from floor to ceiling, with inde- 
 pendent access to each room by a door opening into a hallway, 
 each room having a window or windows with not less than eight 
 square feet of surface opening upon a street or open court, light- 
 shaft or open air, and each having at least eighty square feet 
 of floor area, and at least 600 cubic feet of space therein; also 
 a diningrroom with at least 300 square feet of floor area whieh 
 shall not Toe a part of the barroom, with tables, and suitable table 
 furniture and accommodations for at least twenty guests therein 
 at one and the same time and a kitchen and conveniences for 
 cooking therein, sufficient to provide bona fide meals at one and 
 the same time for twenty guests. 
 
 If a hotel building is not situated in a city, or incorporated 
 village of 1,200 or more inhabitants, or within two miles of the 
 coFporate limits of either, the biiilding must have the same 
 
76 Digest of the 
 
 structural requirements as those above described, except that the 
 number of bedrooms for guests shall not be less than six, and the 
 dining-room shall have not less than 150 square feet of floor area, 
 and the kitchen accommodations shall be sufficient for at least 
 ten guests. 
 
 The hotel building, no matter where situated, must also conform 
 to the lav^s, ordinances, rules and regulations of the State or 
 locality, pertaining to the building, fire and health departments 
 in relation to hotels and hotel-keepers. 
 
 Guests and meals. A guest of a hotel vrithin the meaning of 
 the Law is: (1) A person who in good faith occupies a room in 
 a hotel as a temporary home and pays the regular customary 
 charges for such occupancy, but who does not occupy such room 
 for the purpose of having liquor served therein ; or, 
 
 (2) a person who, during the hours when meals are regularly 
 servel therein, resorts to the hotel for the purpose of obtaining and 
 actually orders and obtains at such time, in good faith, a meal 
 therein. 
 
 What constitutes a meal at a hotel is a question that has occa- 
 sioned a great deal of discussion. It is a question of importance, 
 because, if a hotel-keeper serves liquors on Sunday, in his dining- 
 room, it is necessary for him to show that the liquors so served 
 were a part of a bona fide meal within the meaning of the Law, 
 if it is claimed, in a proceeding to cancel his certificate, that the 
 liquors were served illegally. The certificate-holder must plead 
 and prove hotel privileges, if he claims them. The burden is on 
 him. 
 
 As was stated by the court in Matter of Clement v. Martin, 
 117 App. Div. 5, " to justify a hotel-keeper in furnishing to a 
 transient guest liquor upon Sunday, the situation must be such 
 as to indicate to a person of ordinary intelligence that the guest 
 had resorted to the establishment to obtain, in good faith, a meal, 
 and that the liquor ordered was an incident to that meal; not 
 that the object was to obtain liquors, ordering some article of 
 food, which was not consumed, to accomplish that purpose." 
 
 In a case where a hotel-keeper sought to make it appear that 
 every one who procured a drinlc at his hotel on Sunday must 
 become his guest by partaking of a bona fide sandwich at least, 
 
LiQTTOE Tax Law. 77 
 
 the court said : " Let us give him the benefit of the doubt and 
 assume that a real sandwich was served with each glass of beer. 
 Do the facts then constitute the persons served guests within the 
 meaning of the statute ? Did they resort to this hotel, during the 
 hours when meals were regularly served therein, for the purpose 
 of obtaining, in good faith, a meal therein? We think not, but 
 that the evidence shows that the serving of sandwiches under such 
 circumstances was a mere pretext to evade the Law. It is not 
 serving a meal in good faith, nor does it constitute the respondent 
 the keeper of a bona fide hotel, so as to entitle him to the protec- 
 tion of the exception contained in the Law. The custom of 
 trafficking in liquors on Sunday after the manner of the respond- 
 ent is too clearly contrary to the express provisions of the statute 
 to bear scrutiny and should not be countenanced." (Matter of 
 Schuyler v. Eorphuro, 66 App. Div. 206.) 
 
 The purchase of food only because imposed by the proprietor 
 of a hotel as a condition of obtaining whiskey does not make the 
 purchaser a bona fide guest. 
 
 It is not the kind or quantity of food which necessarily deter- 
 mines what constitutes a meal, but the circumstances under which 
 the food is sought and obtained. 
 
 But the offer of a sandwich to customers is merely an attempt 
 to evade the Law. It is not permissible for a hotel-keeper to 
 sell liquors on Sunday to any person unless that person occupies 
 toward his house the peculiar relation of guest; that is, unless 
 such person comes to the hotel to receive that protection, hos- 
 pitality and entertainment which hotels have always afforded and 
 which, under the law, they are obliged to afford to their guests. 
 A person strolling by the entrance of a hotel, who chances to 
 turn in and buy a drink, does not thereby become a guest within 
 the meaning of the Law. Something more must take place. 
 There must be an intention on his part to adopt the hotel for the 
 time being, whether long or short, as his abiding place, or he 
 niust enter the hotel for the purpose of obtaining in good faith 
 a meal. He must be considered more than a mere purchaser of 
 liquors. One who takes a room for the sole purpose of procuring 
 and drinking liquors is not a guest; one who goes to a hotel on 
 Sunday and orders a meal, not in good faith, not because he is 
 
78 Digest of the 
 
 hungry or wants anything to eat, but for the sole purpose of pro- 
 curing and drinking liquors is not a guest. 
 
 It will be seen that a person may become a bona fide guest of 
 a hotel in two ways: (1) By purchasing, during regular hours, 
 a bona fide meal; or, 
 
 (2) by occupying, in good faith, a room in the hotel, provided 
 the room is not occupied for the purpose of having liquors served 
 therein. 
 
 To a person who becomes a guest in either of these ways, 
 liquors may be served on Sunday, either in the dining-room dur- 
 ing the hours when meals are regularly served therein, or in the 
 guest's room, — except between one and six o'clock in the morning 
 in cities of the first and second class, and between twelve o'clock 
 midnight and six o'clock in any other place; and between eleven 
 and twelve o'clock P. M. in any place not in a city, or village of 
 more than 5,000 population. 
 
 List of lodgers to he furnished hy hotel, lodging and boarding- 
 house-heepers. The keeper of a hotel, lodging or boarding-house, 
 who is trafficking in liquors thereat, under a liquor tax certificate, 
 shall, during the time such certificate is held, and within twenty- 
 four hours from the service of the written notice therefor, de- 
 liver personally to the officer who issued the certificate a verified 
 report containing a true and complete statement of the names of 
 all persons entertained by him as guests, lodgers or boarders, to- 
 gether with the date since when each guest, lodger or boarder has 
 been permanently and continuously an inmate of said hotel, lodg- 
 ing or boarding-house. 
 
 Such written notice can be given only by the State Commis- 
 sioner of Excise and service of the notice may be made upon any 
 person in charge of the premises. 
 
 Every such certificate-holder shall keep a daily record of all 
 persons entertained at his hotel, lodging or boarding-house as a 
 guest, lodger or boarder, vnth the time of arrival and departure 
 set onr>osite each name. This record fusuallv called a hotel 
 register ") is subiect to inspection by any special agent of the 
 State Dommissioner of Excise at any time when the premises are 
 opened. Failure to keep such a record is a misdemeanor. 
 
LiQuoE Tax Law. 79 
 
 CHAPTER XXX. 
 Inspection of Hotels. (§ 32.) 
 
 The Law provides for an. inspection of, and a sworn report upon, 
 every building in a city or incorporated village in which traffic 
 in liquors is to be carried on in connection with the business of 
 keeping a hotel, before any liquor tax certificate can be legally 
 issued therefor. No preliminary inspection and report is re- 
 quired in the case of any hotel outside of a city or incorporated 
 village. This provision with reference to hotel inspection was 
 incorporated in the Law in 1906 and in that year a general in- 
 spection was made throughout the cities and incorporated villages 
 of the State of all buildings then claimed to be, or known as, 
 hotels. Such inspection was necessary before any certificates 
 could be issued for such places after said provision became a part 
 of the statute in 1906. 
 
 The Law does not require more than one inspection and report 
 to be made upon any hotel building in a city or incorporated 
 village unless a liquor tax certificate issued therefor is, after the 
 inspection and report, canceled and revoked, or surrendered upon 
 the demand of the State Commissioner of Excise, on the ground 
 that the alleged hotel building described in the certificate has 
 ceased to comply with the requirements of the statute. 
 
 If, for instance, a building knovsm as a hotel was inspected in 
 the year 1906 by the mayor of the city or president of the incor- 
 porated village, as the case may be, and reported by such officer 
 to the county treasurer or Special Deputy Commissioner of Ex- 
 cise as complying with all the requirements of the Liquor Tax 
 Law as to hotel buildings, etc. — no subsequent inspection and 
 report upon such building is necessary, unless, in the meanwhile, 
 a liquor tax certificate issued therefor has been revoked, or sur- 
 rendered upon the demand of the State Commissioner of Excise, 
 upon the ground that, after due investigation, it appears that 
 such alleged hotel building does not, as a matter of fact, comply 
 with the requirements of the Law. 
 
 Most of the hotel buildings in cities and incorporated villages 
 in this State were inspected in 1906, and no subsequent report 
 has been necessary in most of those cases that were, at that time. 
 
80' Digest of the 
 
 reported favorably. Buildings erected as, or altered or converted 
 into, hotels since the year 1906 and not included in the report 
 filed in that year, are required to be inspected and reported upon, 
 after the erection or alteration of such buildings is completed; 
 and unless this is done, no liquor tax certificate for traffic in 
 liquors in connection with the business of keeping a hotel can 
 legally be issued therefor. 
 
 The required inspection and report are made by the following 
 ofiicials: (1) In the city of New York by the superintendent of 
 buildings of the borough in which the building is located. 
 
 (2) in other cities by the mayor of the city. 
 
 (3) in incorporated villages by the president of the village. 
 These officers were charged, in the year 1906, with the duty of 
 
 inspecting and examining all buildings within their respective 
 jurisdictions, that were deemed to be, or were popularly known 
 as, hotels, so as to ascertain definitely whether or not such 
 buildings complied with all the structural reqiiirements of the 
 Liquor Tax Law as to the number of bedrooms therein, their fur- 
 nishings and the manner that each bedroom was separated from 
 the adjoining rooms, the mode of access to each bedroom, the 
 lighting thereof, the floor area and the cubic dimensions thereof, 
 also the area in square feet of the dining-room and a statement 
 as to the table furnishings and the accommodations for guests, 
 also a statement as to the kitchen conveniences, etc., etc. The 
 State Department of Excise prepared a blank form known as 31X 
 which contains a complete statement of all the details to be passed 
 upon by the officer charged with the duty of making the inspec- 
 tion and this form was generally used in making the original 
 inspection of hotel buildings in 1906. This form, after being 
 fully filled out, was retained on file in the office of the official 
 charged with the duty of making the inspection, and such official 
 filed with the county treasurer or Special Deputy Commissioner 
 of Excise as the case might be, form 3 IB which was a statement 
 containing the names and locations of every building that was 
 a bona fide hotel, within the meaning of the statute, that was 
 situate within the jurisdiction of the officer making the inspec- 
 tion. If at any time since 1906 it has become necessary, or if at 
 any time in the . future it shall be necessary, to report upon a 
 building that has since been erected as, or altered or converted 
 
Liquor Tax Law. 81 
 
 into a hotel, or upon some hotel building originally reported 
 favorably but which has since had a certificate revoked or sur- 
 rendered upon demand of the State Commissioner of Excise as 
 aforesaid, such building should be inspected in the same manner 
 as the inspections were made in 1906, and then reported, if 
 found to comply with the Law, upon a supplemental blank form. 
 Such a form prepared by the State Department of Excise has 
 been generally used up to the present time. This form is known 
 as 31BBB. 
 
 If, in any application for a subdivision 1 liquor tax certificate, 
 it appears that the proposed certificated premises are situate 
 in a city or incorporated village and that the applicant intends 
 to carry on therein the trafiic in liquors in connection with the 
 business of keeping a hotel, the certificate issuing officer must 
 refuse to issue the certificate unless he has on file in his office the 
 sworn statement of the superintendent of buildings, mayor of 
 the city or president of the village, as the case may be, to the 
 effect that such premises have been examined and inspected and 
 found to comply with all the requirements of the Liquor Tax 
 Law as to hotel buildings. 
 
 Any taxpayer of a city or incorporated village who has reason 
 to believe that any hotel building situate therein, for which a 
 subdivision 1 liquor tax certificate has been issued, does . not 
 comply with the structural requirements of the Law, may at any 
 time file a statement to this effect, giving his reasons therefor, with 
 the State Commissioner of Excise. Upon receiving such state- 
 ment, said State Commissioner of Excise is required forthwith 
 to cause such hotel building to be inspected in detail and if it 
 appears from such inspection that the building is defective in that 
 it does not comply with the requirements of the Law relative to 
 hotels, the State Commissioner of Excise is required to commence 
 immediately proceedings to cancel and revoke the certificate held 
 for such hotel building, unless, in accordance with his demand, 
 the liquor tax certificate shall be immediately surrendered to the 
 officer who issued the same. If the certificate is revoked or 
 surrendered, notice thereof shall be given to the mayor of the 
 city, superintendent of buildings of the borough or the president 
 of the village as the case may be, in which the so-called hotel 
 
82 Digest of the 
 
 building is situate ; and before any liquor tax certificate for hotel 
 traffic shall again be issued for the premises, another inspection 
 of the building shall be made and a new sworn statement filed 
 with the certificate issuing officer, showing that the premises have 
 been made to comply with the provisions of the Law in relation 
 to hotels. 
 
 All sheriffs, deputy sheriffs, police officers, constables, their 
 assistants and helpers and all officers of any building department, 
 their assistants and helpers, and all mayors and village presidents 
 and all persons authorized by them and all special agents and 
 any assistants and helpers, authorized by the State Commissioner 
 of Excise, may, on any days between the hours of nine o'clock 
 in the morning and six o'clock in the afternoon, or at any other 
 time when the hotel is open, enter and inspect, survey, measure 
 or map any building or premises conducted as a hotel or claimed 
 or advertised as a hotel, situate in a city or incorporated village. 
 Any person who forbids', obstructs or prevents any of such 
 officers, helpers or assistants from free entry into such building 
 or premises for the purposes aforesaid, shall be guilty of a mis- 
 demeanor and may be immediately arrested, and upon conviction, 
 if he be the holder of a liquor tax certificate or certificates, he 
 shall forfeit the same and be deprived of all rights and privileges 
 thereunder, and of any rebate of any portion of the tax. If he 
 is not the holder of a liquor tax certificate, he shall, if convicted, 
 be punished by a fine of not more than $500 or by imprisonment 
 in the county jail or penitentiary for a term of not more than one 
 year or by both such fine and imprisonment. 
 
 Any mayor, village president, sheriff, deputy sheriff, police 
 officer, constable, superintendent of buildings, or other officers 
 of the building department, of any city, borough or incorporated 
 village, commissioner of police, chief of police, superintendent of 
 police, district attorney, assistant district attorney, special agent 
 of the State Commissioner of Excise, Special Deputy Commis- 
 sioner of Excise or county treasurer who shall neglect or refuse 
 to perform any duty devolving on him by virtue of the pro- 
 visions of the Law, relative to the inspection of hotel buildings in 
 cities and incorporated villages, or who shall make a false report 
 thereunder, shall be guilty of a misdemeanor and, upon convic- 
 
LiQuoE Tax Law. 83 
 
 tion, shall be punished by a fine of not more than $1,000 or by 
 imprisonment in a county jail or penitentiary for a term of not 
 more than one year, or by both such fine and imprisonment, and 
 shall also forfeit his office and all rights thereunder. 
 
 CHAPTER XXXI. 
 " No-License " Towns. 
 
 As generally understood, a " no-license " town is a town in 
 which all foiir of the local option questions have been carried 
 in the negative. 
 
 Clause J of section 30 of the Law provides that it shall be 
 illegal to sell liquors in any qucmtity in a " no-license " town. 
 It also provides that it shall be illegal to sell liquors in any 
 quantity in a town where the third question only has been carried 
 in the affirmative, except that the holder of a subdivision 3 certifi- 
 cate may sell liquors upon the written prescription of a regularly 
 licensed physician, and may also sell alcohol to be used for 
 medicinal or mechanical purposes without a prescription^ except 
 during prohibited hours. What is known as a subdivision 1, or 
 fruitgrower's certificate, may also be issued in a " no-license " 
 town, or in a town where subdivision 3 traffic only is permissible, 
 but under such a certificate liquors produced from fruits, 
 although they may be soldj cannot be delivered in such town, 
 except to the lawful holder of a subdivision 3 certificate, if there 
 be one in the town. 
 
 Clause K of section 30 further provides that it shall be unlaw- 
 ful to solicit, accept or procure in a " no-license " town, or in 
 a town where subdivision 3 traffic only is permissible, an order 
 to deliver or send to another, or for another, liquor in any quantity 
 where the person, for whom such liquor is procured, resides in any 
 such tovni. 
 
 It will be observed that there is no provision of the Law pro- 
 hibiting the delivery of liquors in a " no-license " tovra, or in a 
 town where subdivision 3 traffic only is permissible. For instance 
 A. who resides in such a town may go into an adjoining town 
 where traffic in liquors is lawful, and there purchase such quantity 
 of liquors as he may desire, and bring such liquors back with him 
 
84 Digest of the 
 
 into the " no-license " town or into the town where subdivision 3 
 traffic only is permissible. 
 
 A. might also have the liquors delivered from the " license " 
 town to his home, provided such delivery was not a material part 
 of the sale, and was made by A's agent, and not by the agent of 
 the vendor of the liquors. In other words, unless the sale of 
 liquors is made in the " no-license " town, or in the town in which 
 subdivision 3 traffic only is permissible, the Law is not violated, 
 provided the order for the liquors is not solicited, accepted or 
 procured in such town. 
 
 Just where a sale of liquors occurs is a question of fact to be 
 determined in each case by all the circiunstances peculiar to it. 
 If the sale is completed at the certificated premises of the vendor 
 in a " license " town, a subsequent delivery of the liquors in the 
 " no-license " town, or in the town where subdivision 3 traffic only 
 is permissible, is not a violation of the statute. 
 
 In the case of People v. Capen, 26 Hun, 377, it appeared that 
 the defendant took an order for liquor in a " no-license " town 
 and conveyed the order to his master in a " license" town; that 
 the master filled it by giving the liquor that had been ordered to 
 the servant (the defendant) who thereupon took the liquor into 
 the " no-license " town, and there delivered it to the purchaser, 
 and there received payment therefor. This was held to be a 
 sale of liquors in a " no-license " town. The court said : " Upon 
 the whole case, we think it would be a violation of the law to 
 send liquors from one town where the license permits the sale, 
 to another town where the sale is unlawful, by an agent or servant 
 of the seller, to be delivered and pay therefor collected of the 
 purchaser." 
 
 It will be seen that, in this case, not only was the order taken 
 in the " no-license " town, but the liquors were delivered and 
 payment therefor collected therein, so that all of the material 
 elements of the sale, viz., the order, the delivery and the payment, 
 occurred in the " no-license " town. 
 
 1^0 rule can be laid down as to just what incidents of the sale 
 must occur in the " license " town, and what incidents may occur 
 in the " no-license " town. The legality of a transaction involv- 
 ing the delivery of liquors in a " no-license " town is largely deter- 
 
LiQtroB Tax Law. 85 
 
 mired by the evidence of good faith and the intent of the parties. 
 But no matter what the intent of the parties may be, if enough 
 of the essential elements of the sale occur in the " no-license " 
 town so that it can be said that, under the circumstances, the sale 
 itself occurred therein, the Law would be violated. But unless 
 the sale itself occurs in the " no-license " town, no crime is com- 
 mitted under the Liquor Tax Law, provided the order for the 
 liquors is not solicited, accepted or procured in such town. 
 
 After the purchase of the liquors in the " license " town, they 
 may be kept and used in the " no-license " town, or in the town 
 where subdivision 3 traffic only is permissible, for the personal 
 use of the purchaser, or for what is generally spoken of as " family 
 purposes;" or such purchaser may serve them to his guests, etc., 
 in good faith as an act of hospitality ; but he would have no right, 
 for instance, to serve liquors at his home to individuals whom he 
 had invited there for the sole purpose of providing them with 
 liquors; and it would be a violation of the Law for him to -give 
 away or distribute the liquors at his home or elsewhere, in such 
 town, under siich circumstances as would amount to an evasion 
 of the spirit and intent of the Law. 
 
 CHAPTER XXXII. 
 
 Search for, Seizure and Forfeiture of Liquors. (§ 33-) 
 
 In every case where it can be shown that liquors are kept, 
 stored or deposited in any place in this State for the purpose of 
 sale or distribution therein contrary to the Law, such liquors and 
 the vessels in which such liquors are contained may be declared 
 a nuisance and forfeited to the State. 
 
 The mere possession of liquors by a person in a " no-license " 
 town or by a person not holding a liquor tax certificate in a 
 " license " town is not sufficient to authorize the seizure of the 
 liquor. It must be shown that such liquors are kept for the pur- 
 pose of unlawful sale or distribution. This is usually shown by 
 proving that the person keeping the liquors has sold some of them. 
 This is the best proof, and, speaking generally, is essential in 
 making out a case. 
 
86 Digest of the 
 
 It should be borne in mind that it is not a violation of the 
 Law for a person to keep liquors in his home either in a " license " 
 or in a " no-license " town, provided such liquors are kept and 
 used solely in the family for what are commonly known as 
 " family purposes," or are served to guests, in good faith, as an 
 act of hospitality. In serving liquors in the family or to guests, 
 it should also be borne in mind that the service must not be for 
 the purpose of evading the provisions of the statute. Tor in- 
 stance : It would be a violation of the Law for a person to invite 
 to his home a number of individuals for the purpose of furnish- 
 ing them with liquors on the plea that they were his guests; If 
 a person keeps any kind of liquor at his store or even at his home, 
 in a " no-lioense " town, or without a certificate in a " license " 
 town, and sells any of it or gives any of it away or distributes any 
 of it to others under such circumstances as would amount to an 
 evasion of the prohibition against sales of liquor in a " no-license " 
 town or against sales of liqvior in a " license " town without a 
 certificate, the liquor so kept by him is subject to seiztire and for- 
 feiture imder the statute. 
 
 The search for, the seizure and the forfeiture of liquors con- 
 stitute a proceeding against the property, and not against the 
 person; that is to say, the property only is affected by the pro- 
 ceeding. (Clement v. May, 13'6 App. Div. 199'; Clement v. 
 McManus, 136 App. Div. 2i91.) This fact, however, would not 
 prevent the person who sold the liquors from being arrested and 
 prosecuted criminally. But the only judgment that can be ren- 
 dered in a search and seizure proceeding, so-called, is one either 
 for the dismissal of the complaint and the return of the liquors, if 
 the case is not established, or for the destruction of the liquors and 
 the vessels in which they are contained, if the evidence is sufiicient. 
 In order to seize liquors claimed to be kept or stored illegally, it is 
 absolutely necessary for the complainant to have evidence in his 
 possession tending to show that the liquors are so kept or stored. 
 The complainant must prepare a verified complaint, setting forth 
 facts which establish that the liquors are kept, stored or deposited 
 for the purpose of unlawful sale or distribution in this State, or 
 facts which establish that there is probable cause for believing 
 that liquors are so kept, stored or deposited. A complaint based 
 
LiQTJOK Tax Law. 87 
 
 merely upon suspicion, inference or conjecture would b© wholly 
 insufficient. It must set forth facts. A complaint based solely 
 upon information and belief without giving grounds and sources 
 is insufficient and is not cured by an accompanying affidavit of 
 another person that the contents of complaint is true to his own 
 knowledge. (Matter of Huff, 136 App. Div. 297.) Liquors 
 are property and cannot be seized or destroyed except by due 
 process of law, and it is necessary that all the variousi steps 
 provided for in the statute be carefully followed. The verified 
 complaint must be made either by a special agent of the 
 State Commissioner of Excise or by a peace officer, such as 
 a sheriff, deputy sheriff or constable. The verified complaint 
 may be presented to a judge of any city court of record of 
 a city, or to any county judge of the coimty, or a justice of the 
 Supreme Court in the judicial district, where such liquors are 
 so kept, stored or deposited. If the judge or justice after examin- 
 ing the verified complaint is satisfied that there is probable cause 
 to believe that liquors are kept for illegal sale or distribution, as 
 set forth in the complaint, he is required to issue his warranr-, 
 directed to any peace officer, or to a special agent upon his request, 
 commanding him forthwith to search the premises described in 
 the warrant and to seize the liquor described in the complaint, 
 if found, and also the vessels containing the same, and to safely 
 keep such liquors and vessels until final action thereon. The 
 complaint must state the name of the person who, it is claimed, 
 keeps, stores or deposits the liquors for unlawful sale or distribu- 
 tion, together with the name of the ovraer of the premises where 
 such liquors are so stored, kept or deposited, provided this in- 
 formation be known to the complainant. The complaint mnst 
 also contain a description of the premises sufficient to identify 
 the same. 
 
 The warrant issued by the judge or justice shall contain a 
 notice directed generally to all persons claiming any right, title 
 or interest in the liquors or in the vessels containing the same, 
 to appear before the judge or justice at a time and place specified, 
 aot more than twenty days after the issuance of the warrant and 
 not less than ten days after the execution thereof, and show cause 
 why such liquors and the vessels containing the same should not be 
 
88 Digest op thb 
 
 forfeited to' the State. If the warrant is issued by a justice of the 
 Supreme Court, it may be made returnable at a Special Term of 
 the court to be held in the judicial district where the liquors are 
 kept, stored or deposited. 
 
 The warrant must be executed by the special agent or peace 
 officer to whom it is delivered within ten days after the issuance 
 thereof, and such warrant may be executed at any time between 
 six o'clock in the morning and six o'clock in the afternoon or, if 
 the premises be open, at any other time. 
 
 It is a misdemeanor for any person to forbid, obstruct or pre- 
 vent any peace officer or special agent or any accompanying 
 helper or assistant free entry into, or search of, any building or 
 premises specified in the warrant, or the seizure of such liquors 
 therein found, or the vessels containing the same, during the 
 time above specified, provided notice of the authority and pur- 
 pose of such peace officer or special agent is first given. A person 
 who commits such a misdemeanor may be forthwith and without 
 a warrant arrested by such peace officer or special agent. 
 
 A copy of the warrant must be delivered to the person keeping 
 such liquors, if he is present at the time of the seizure; if he is 
 not present, then a copy of the warrant shall be delivered to the 
 person, if any, apparently in possession of such liquors, or of the 
 premises wherein the same are found, and another copy of such 
 warrant shall be posted in a conspicuous place upon the premises. 
 The special agent or peace officer seizing the liquors shall give 
 a receipt therefor, to the person keeping the same, if present, and 
 if he be not present, then to the person, if any, apparently in 
 possession of such liquors or in charge of the premises, or in 
 the absence of any such person, the receipt must be left in the 
 place where the liquors are found. 
 
 At the time and place specified in the notice contained in the 
 warrant, any person claiming any right, title or interest in the 
 liquors seized or in the vessels containing the same, may interpose 
 an answer controverting the allegations of the complaint upon 
 which the warrant was issued. If such answer is interposed, the 
 proceeding at once becomes an action pending in the court of the 
 judge or justice who issued the warrant and such action is deemed 
 one between the State Commissioner of Excise and the liquors so 
 
LiQTJOB Tax Law. 89 
 
 seized, and may be so entitled, adding far identification the name 
 of the person or persons interposing the answer and claiming or 
 defending the liquors seized. Such action shall be tried in the 
 court as other issues of fact are tried therein. 
 
 If no answer is interposed at the time and place specified in 
 the notice contained in the warrant, the judge or justice shall 
 proceed to hear the testimony. 
 
 If it be established, either upon the hearing before the judge 
 or justice, or upon the trial of the action, if an answer is inter- 
 posed — that the liquors that have been seized were kept, stored 
 or deposited for the purpose of unlawful sale or distribu- 
 tion within this State, judgment of forfeiture of said liquors 
 and the vessels containing the same to the State shall be entered, 
 which judgment shall provide for the public des'truction of 
 such liquors and vessels by and under the direction of the 
 peace ofiicer or special agent who seized the same or by and under 
 the direction of the State Commissioner of Excise. If the testi- 
 mony before the judge or justice shall fail to establish that the 
 liquors were kept, stored or deposited for the purpose of unlawful 
 sale or distribution within this State, judgment shall be entered 
 dismissing the complaint and providing for the return of the 
 liquors to the place from which, or to the person from whom, 
 they were taken. 
 
 The judge or justice upon the entry of the judgment shall 
 return promptly to* the State Commissioner of Excise, in writing, 
 the date of the issuance of the warrant, the name and residence 
 of the complainant, the location of the premises searched, with 
 their street and number if any, the name of the officer or special 
 agent to whom the warrant was delivered and, if any liquors were 
 seized, a description of the same and the final disposition thereof. 
 
 The fees of any peace ofiicer and the necessary expenses of any 
 peace officer or special agent in the performance of his duties 
 under the Search and Seizure Law shall "be a charge on the town 
 or city in which the premises searched are located. 
 
 Costs are not provided for by the statute in these actions and 
 hence cannot be allowed. [Clement v. Liquors (Harden Case), 
 62 Misc. Rep. 31.J 
 
 Demurrer is not authorized in these actions and should be 
 dismissed. [Clement v. Liquors, 66 Misc. Rep. 2il5.J 
 
90 Digest of the 
 
 Any liquors and any vessels containing them that are seized 
 in a search and seizure proceeding cannot legally be taken from 
 the custody of the peace ofEcer or special agent, making the 
 seizure, by a writ of replevin, or any other process, while the 
 trial is pending. 
 
 Certain acts are made by the statute prima facie evidence that 
 liquors are kept, stored and deposited in violation of the Law: 
 
 The payment of a retail liquor dealer's, or retail malt liquor 
 dealer's, special United States internal revenue tax for the place, 
 and covering the period in which such liquors are seized, or the 
 maintenance or posting in any place where such liquors are seized, 
 of a retail liquor dealer's or retail malt liquor dealer's special 
 United States internal revenue tax stamp, in force and effect at 
 the time of such seizure, or the posting, keeping or maintaining 
 of a notice or sign of any kind on or about the premises where 
 such liquors are seized, indicating that liquors are there sold, kept 
 or given away at any place where traffic is prohibited under the 
 provisions of section 13 of the Law, or any place for which 
 a liquor tax certificate under section 8 of the Law has not 
 been issued, shall be prima facie evidence that the liquors so 
 seized were illegally kept, stored or deposited. The keeping of 
 liquors in any building, not used exclusively for a dwelling, in 
 which traffic is prohibited under the provisions of section 13 
 of the Law, shall be prima facie evidence that the same are 
 kept illegally. ISTo person, except one who answers, claiming 
 some interest in the liquors seized, is excused from testifying on 
 the ground that the testimony may convict him of a crime or 
 subject him to a penalty, but no person shall be prosecuted or 
 subjected to> any penalty or forfeiture on account of any testi- 
 mony given by him. 
 
 CHAPTER XXXm. 
 When Sales of, and Pledges Relating to, Liquors Are Void. 
 
 ISTo recovery can be had in any civil action for the purchase 
 price of any liquor sold on credit, if the liquor sold was to be 
 drunk on the premises where the same was sold. 
 
LiQtroE Tax Law. 91 
 
 All securities given for debts contracted for purchase price of 
 liquors to be drunk on the premises where sold are void (Wagner 
 V. Scherer, 89 App. Div. 20'2), and any person taking such se- 
 curity with intent to evade this provision of the statute is subject 
 to a forfeiture of $50 for each offense. 
 
 Every assignment, sale or pledge of articles or property, exempt 
 by law from execution, and every levy or sale of such articles 
 or property by virtue of an execution by consent of the defendant 
 therein, is also void where the consideration, or any part thereof, 
 for which such assignment, sale or pledge was made, or for the 
 debt on which judgment was rendered in any court and on which 
 the execution was issued, was for the sale of liquors. (§ Si.) 
 
 CHAPTER XXXIV. 
 
 Jurisdiction of Courts and Duties of Public Officers. Criminal 
 Remedies That Citizens May Invoke. 
 
 Except as hereinafter stated, violations of the Liquor Tax Law 
 are required to be prosecuted by indictment by the grand jury of 
 the county in which the crime was committed, and by trial in a 
 court of record having jurisdiction of the trial of crimes of the 
 grade of felony. Any magistrate of the county, such as a justice 
 of the peace, has' jurisdiction to examine on oath any person 
 who claims that the Law has been violated, and any witnesses 
 he may produce, and issue subpoenas for such witnesses as he 
 may name, and examine them on oath, and after reducing the 
 sworn testimony to writing shall, if it appears that the Law 
 has been violated, issue a warrant for the arrest of the person 
 who, it is claimed, has violated the Law. An examination may 
 thereupon be held before the magistrate; or the person arrested 
 may waive examination and have the case presented directly 
 before the grand jury. If an examination is had before the 
 magistrate, and it appears to his satisfaction that the person 
 charged with the commission of the crime is guilty thereof, the 
 magistrate shall admit such person to bail in a sum not less than 
 $1,000, and in default of bail, shall commit him to the sheriff of 
 the county, or if in the city of New York, to the keeper of the 
 city prison of the city of ISTew Tork. 
 
92 Digest of the 
 
 A magistrate, before whom any person shall be brought charged 
 with a violation of the Law, shall immediately give notice thereof 
 to the State Commissioner of Excise, setting forth the facts in 
 the case. 
 
 Courts of Special Sessions have exclusive jurisdiction to try 
 and determine any willful violation of the Law for which no 
 punishment or penalty is expressly provided for in the statute. 
 This jurisdiction is rarely, if ever, invoked for the reason that 
 practically all violations of the statute are punishable by express 
 provision. 
 
 Speaking generally, therefore, it may be said that outside of 
 the city and county of New York violations of the Liquor Tax 
 Law must be tried after indictment in a court of record having 
 jurisdiction of the trial of crimes of the grade of felony. 
 
 If a preliminary examination is held before a magistrate of 
 the county, such as a justice of the peace, and the prisoner is 
 held to await the action of the grand jury, he must thereafter be 
 indicted before he can be tried for the alleged offense. 
 
 The court or officer before whom any person shall be tried for 
 a violation of the Law, or the clerk of the court if there be one, 
 shall mail or deliver to the State Commissioner of Excise a cer- 
 tified statement of the disposition of the case, giving the essential 
 facts connected therewith. 
 
 Trial of excise cases in New York county. After a person 
 has been held to bail by a magistrate for a violation of the Law 
 in the city and county of New York, all subsequent proceedings 
 shall be prosecuted in the Court of Special Sessions in and for 
 said city and county of New York, in the manner prescribed by 
 law for the trial of misdemeanors committed therein. 
 
 Dviies of -public officers. It is the duty of every sheriff, deputy 
 sheriff, police officer or constable, who has notice or knowledge of 
 any violation of the Law, to notify immediately the district 
 attorney of the county in which the violation occurs by a state- 
 ment under oath of the facts of such violation. Thereupon it 
 becomes the duty of such district attorney forthwith to cause the 
 arrest and attend the examination personally or by an assistant 
 of such person so complained of, unless a term or court, with a 
 grand jury in attendance, is to be held within ten days from the 
 
LiQUOE Tax Law. 93 
 
 com- 
 
 time of the receipt by the district attorney of such verified 
 
 plaint, or unless such accused person shall have been examined 
 upon such charge and admitted to bail or committed thereon. 
 
 It is also the duty of the district attorney of any county to 
 prepare and present to the grand jury all evidence tending t> 
 show a violation of the Law in each case within his knowledge or 
 reported to him by a police officer as aforesaid, or reported to him 
 by the verified complaint of any reputable citizen; and it is the 
 duty of such district attorney to prosecute any person violating 
 the Law and for each and every violation thereof. 
 
 It will be seen, therefore, that any reputable citizen may pre- 
 sent to the district attorney of his county a verified complaint, 
 setting forth facts tending to show that the Liquor Tax Law has 
 been violated, and it thereupon becomes the duty of the district 
 attorney to prosecute the alleged offender in due course. Thus 
 an ample remedy to correct excise abuses is placed in the hands 
 of every citizen of the community where such abuses occur. If 
 he has knowledge of any violation he can set the machinery of the 
 law in motion by filing a verified complaint with the prosecuting 
 officer of the county whose duties are plainly set forth in the stat- 
 ute. The district attorney is required to file in the office of the 
 clerk of the county, within five days after the discharge of any 
 grand jury, a certified statement giving the record of every case 
 of alleged violation of the Liquor Tax Law. 
 
 All officers authorized to make arrests in any city, town or 
 village and the special agents of the State Commissioner of 
 Excise may, in the performance of their duties, enter upon any 
 premises where the traffic in liquors is carried on, or where liquors 
 are exposed for sale, at any time when such premises are open — 
 except that places occupied by membership corporations, incor- 
 porated prior to the 23d day of March, 189'6, and which traffic 
 in liquors solely with the members thereof, shall not be entered for 
 inspection by any officer unless such entry and inspection are ex- 
 pressly authorized and directed by the State Commissioner of 
 Excise by written instructions. 
 
 Any officer who neglects or refuses to perform his duty under 
 the provisions of the Liquor Tax Law is liable to a penalty of 
 $500 for each and every offense, and if such officer be a county 
 4 
 
94 Digest of the 
 
 treasurer or district attorney, he shall be removed from office by 
 the Governor after hearing and determination thereon and deci- 
 sion that such neglect or refusal has occurred. Any person may 
 prefer charges to the Governor under this section. 
 
 CHAPTER XXXV. 
 Persons Liable for Violating the Law. 
 
 Any person who is engaged in the liquor traffic, whether as an 
 officer of a corporation or association, or a member of a coparti- 
 nership, or as an individual, shall upon conviction of a violation 
 of any of the provisions of the Law be liable for, and suffer the 
 penalties imposed for, such violation. Any clerk, agent, employee 
 or servant shall be equally liable as principals for any violation of 
 the Law, and, except as hereinafter stated, each violation of the 
 Law shall be construed to constitute a separate and complete 
 offense, and for each violation on the same day or on different 
 tlays the person or persons offending shall be liable to the 
 penalties and forfeitures imposed by the Law. All violations of 
 the Law committed by any person on the same day shall together 
 constitute but one crime, which shall be denominated the crime 
 of " violating the Liquor Tax Law," and it shall be competent 
 to prove on the trial or hearing each separate violation com- 
 mitted on said date, provided each violation proved is se'ti forth 
 in the indictment, dharge or complaint in general or specific 
 terms. 
 
 A clerk who is punished criminally for a violation of the Law 
 does not thereby relieve his employer from civil liability for the 
 former's act. 
 
 CHAPTER XXXVI. 
 
 Penalties for Violating the Lawr. 
 
 1. Any person who traffics in liquors contrary to the local 
 option status of the town in which the traffic is carried oto, or who 
 traffics without having made proper application for a certificate, 
 or without having paid the tax imposed by the Law, is guilty 
 of a misdemeanor and upon conviction therefor is punishable 
 
LiQtroB Tax Law. 95 
 
 by a fine of not less than $200 nor more than $1,200 and shall also 
 be imprisoned in a county jail or penitentiary for a term of not 
 less than thir'ty days nor more than one year. 
 
 2. Any person who makes any false statement in his appli- 
 cation for a liquor tax certificate or in his application to trans- 
 fer any liquor tax certificate, or who violates any of the provisions 
 of section 8, 19, 20, 21, 23, 29 or 30 of the Law, is guilty of a 
 misdemeaaor and upon conviction therefor is punishable by a 
 fine of not more than $500 or by imprisonment in a county jail or 
 penitentiary for a term of not more than one year or by both such 
 fine and imprisonment; and shall also forfeit the liquor tax cer- 
 tificate held by him at the date of conviction and be deprived of 
 all rights and privileges thereunder, and of any right to a rebate 
 thereon. Violations of tlie sections above mentioned include 
 trafficking without having a certificate properly posted ; trafficking 
 under a subdivision 1 certificate in the same room as that in 
 which the business of selling dry goods, or groceries or provisions 
 or drugs as a pharmacist! is being carried on ; trafficking by a per- 
 son who has been convicted of a felony, or who is under the age 
 of 21 years, or who is not a citizen of the United S'tates ; or traffick-) 
 ing in a cemetery, or selling liquors to a minor under the age of 18 
 years or to an intoxicated person, habitual drunkard, Indian or 
 forbidden person, or to any inmate of a State prison, jail, asylum, 
 etc., trafficking on Sunday illegally, or on any week day during 
 prohibited hours, maintaining of any screen or blind or curtain in 
 the window or windows during prohibited hours, allowing any 
 gambling on the premises or permitting the premises to becolne 
 disorderly, etc., etc. In fact the sections above mentioned include 
 practically all crimes that may be committed under the Liquor 
 Tax Law by a person who holds a liquor tax certificate. 
 
 Whenever any fine is imposed upon a conviction for a viola- 
 tion of the Law, the judgment must provide that the person fined 
 be imprisoned until the fine is satisfied, which imprisonment can- 
 not exceed one day for every dollar of the fine nor be less than 
 one day for every $5 of the fine. 
 
96 Digest of the 
 
 CHAPTER XXXVII. 
 Collections of Fines and Penalties. 
 
 When any person is convicted of keeping a disorderly house 
 or of gambling, or of any felony whatsoever, the court, or clerk 
 of the court, shall immediately make and file in the office of the 
 county clerk a certified statement of such conviction and the 
 sentence, if any, to be reported to the State Commissioner of Ex- 
 cise by such county clerk. 
 
 Upon conviction of any person for a violation of the Liquor 
 Tax Law, the court or clerk of the cour'ti shall immediately file 
 in the ofiice of the county clerk a certified statement of such 
 conviction and the sentence, if any, and such county clerk shall 
 immediately make a record of the amount of the penalty or fine 
 imposed as a judgment against the person so convicted and in 
 favor of the State Commissioner of Excise, and shall also enter 
 a brief statement, setting forth the fact that the judgment is for 
 a fine or penalty imposed for a violation of the " Liquor Tax 
 Law," and said county clerk shall immediately mail or deliver 
 to the State Commissioner of Excise a duly certified transcript 
 of said judgment. 
 
 If the fine imposed is paid into court, it shall be turned' over 
 to the county treasurer or Special Deputy Commissioner of the 
 county or borough, who shall give his receipt therefor, and im- 
 mediately notify the State Commissioner of Excise of such pay- 
 ment and he shall thereupon execute a satisfaction thereof, to 
 be delivered to the judgment debtor. If the judgment is not 
 paid within five days after conviction and sentence, an execu- 
 tion shall issue against the property of the judgment debtor. 
 
 Any levy made under such execution shall take precedence over 
 any and all liens, mortgages, conveyances or incumbrances taken 
 or had on such property subsequent to the docketing of said judg- 
 ment, and no property of said judgment debtor shall be exempt 
 from such a levy and sale. 
 
 At the end of each month, every county clerk is required to 
 make under his hand and official seal, and forward to the State 
 Commissioner of Excise, a written report of all orders or judg- 
 ments filed or entered in his office during such month in favor of 
 
LiQTTOB Tax Law. 97 
 
 or against the State Commissioner of Excise, and also a report 
 of all orders or judgments entered in said office in favor of or 
 against any person illegally trafficking in liquor, or tlie holder of 
 a certificate in any proceeding brought for the purpose of com- 
 pelling a surrender of the certificate or in favor of or against any 
 county treasurer or Special Deputy Commissioner on account of 
 his having issued or transferred or refused to issue or transfer 
 any liquor tax certificate. Such report shall also contain a state- 
 ment of all indictments for violations of the Liquor Tax Law and 
 all judgments of convictions thereon. 
 
 CHAPTER XXXVIII. 
 
 Recovery of Damages in a Civil Action ; Actions to Recover 
 
 Penalties. 
 
 A recovery may be had in a civil action of the damages suf- 
 fered by reason of the intoxication of any person, from any cor- 
 poration, association, copartnership or person who, by selling or 
 giving away liquors, has caused such intoxication, provided the 
 person suffering such damages shall, previous to such selling or 
 giving away, have given written notice, forbidding such selling 
 or giving away of liquors to the person whose intoxication shall 
 have caused such damage; or such damage may be recovered from 
 any corporation, association, copartnership or person owning or 
 renting or permitting the occupation of any building or premises 
 where su<;h selling or giving away of liquors shall have occurred, 
 jointly with the corporation, association, copartnership or person, 
 selling or giving away the liquors, or severally when the notice 
 forbidding the sale or giving away of the liquors was served upon 
 such owners or their authorized agents, and not otherwise. 
 
 An y person who traffics in liquors contrary to the Law, or who 
 makes a false statement in applying for a certificate, or in ap- 
 plying for the transfer or surrender and cancellation thereof, or 
 who shall in any other way violate the Law, is liable, in addition 
 to the other punishments imposed by the statute, to a penalty of 
 $50 for each and every violation to be recovered by the State Com- 
 missioner of Excise in an action brought by him in any court of 
 record in any county of the State. 
 
98 Digest of the 
 
 Two or more penalties may be sued for and recovered in the 
 same action, if the judgment for the penalty is recovered against 
 the certificate-holder. The certificate is thereby forfeited and the 
 holder of the certificate must surrender the same immediately 
 and his neglect or refusal to do so is a contempt of court. 
 
 The State Commissioner of Excise may also bring an action 
 in his name as Commissioner to recover the penalty of $500 im- 
 posed by the Law for the neglect or refusal of the public ofiicer 
 to perform his duties under the provisions of the statute. 
 
INDEX. 
 
 Abandonment : Page. 
 
 by written notice 24-26 
 
 by ceasing to traflSc 33 
 
 Agent : 
 
 when act of, makes certificate holder liable 67-69, 94 
 
 Alcohol 4-7, 11 
 
 All-night certificates 12-13 
 
 Application for certificate: 
 
 how and to whom made 28-32 
 
 Bar: 
 
 one certificate for each bar where traffic is carried on 13-14 
 
 Barroom : 
 
 hours of opening and closing 60-61 
 
 view of, and obstructions in 63, 73-75 
 
 who may not enter and remain in 61 
 
 Blinds. (See Screens.) 
 Boarding House: 
 
 what is a public 36 
 
 Boats : 
 
 traffic in liquor on 11, 61 
 
 Bonds. (See Liquor tax bonds.) 
 
 Cancellation proceedings. (See Revocation of liquor tax certificate.) 
 
 Census. (See Enumeration.) 
 
 Certificate. (See Liquor tax certificate.) 
 
 Certiorari to compel issuance or transfer of certificate 49-50 
 
 Church : 
 
 traffic within 200 feet of 44-46, 68-69 
 
 Clubs and societies: 
 
 right to traffic in liquors by 8-9, 45, 60-61 
 
 Consents of dwelling owners 32-37 
 
 " Continuous traffic " and " continuous occupancy " 33-34 
 
 Conviction. (See Forfeiture of liquor tax certificate.) 
 County clerks: 
 
 their duties under the law 92-94, 96-97 
 
 County treasurers: 
 
 their duties under the law 2-4, 18, 26, 32, 46-49, 70-73, 79-83, 93-94 
 
 Courts : 
 
 iurisdicton of, under the law 91-94 
 
 Crimes under Liquor Tax Law 37, 39, 41, 42-46, 58-66, 73-75, 
 
 76-78, 83-90, 94-95 
 
 Criminal remedies that citizens may invoke 93 
 
 Damages in civil action 97-98 
 
 Death of certificate holder 7S-73 
 
 Disorderly premises 65-70 
 
 Dissolution of corporation or copartnership holding liquor tax certificate 72-73 
 Druggist. (See Pharmacist.) 
 Duplicate certificate: 
 
 when and how issued 38 
 
 Dwelling owners. (See Consents of dwelling owners.) 
 Elections: 
 
 traffic near polls prohibited 43 
 
 Entrances to places of traffic 37 
 
 Enumeration to determine amount of excise taxes 13 
 
 [99] 
 
100 Ijs-dex. 
 
 Excise taxes: ^ifi^ 
 
 amount assessed on dififerent grades of trafBc 10-13 
 
 Female: 
 
 when protibited from selling liquors 61 
 
 Fines and penalties 94-97 
 
 Forfeiture of liquor tax certificate 67-70, 95 
 
 Gambling: 
 
 effect of 67-70 
 
 what constitutes, in certificated premises 63-65 
 
 Guests of a hotel: 
 
 who are and their privileges 76-78 
 
 Hotel-keepers : 
 
 right to sell liquors on Sunday 75-78 
 
 Hotels : 
 
 what are 75-76 
 
 structural requirements of 75-76 
 
 inspection of 79-83 
 
 Illegal sales and other violations. (See Crimes.) 
 
 Injunctions: 
 
 how procured and for what purpose 66-57 
 
 Inspection of hotels before issuance of subdivision 1 certificates 
 
 therefor 79-83 
 
 Jurisdiction of courts and duties of public officers 91-94 
 
 Liquors : 
 
 what are 4-7 
 
 sale of adulterated, a misdemeanor 62 
 
 Liquor tax bonds 30-31 
 
 Liquor tax certificate: 
 
 nature of 1 
 
 how and by whom issued 26-32 
 
 posting of 37-38 
 
 revocation of 50-56, 67-70 
 
 forfeiture of 67-70 
 
 sale and transfer of 70-72 
 
 surrender for rebate of 46-48 
 
 when application for, to be made 26-27 
 
 who may not hold 39-41 
 
 Liquor Tax Law: 
 
 its character and scope 1-4 
 
 may be changed or amended at any time 1-2 
 
 Local option 14-20 
 
 Lost or destroyed certificate 36 
 
 Meals : 
 
 what are, in order to make person a guest at a hotel 76-78 
 
 "No license" towns: 
 
 sale of liquors in 43, 83-85 
 
 sCHciting orders for liquor in 61 
 
 Patent medicines. (See Liquors.) 
 
 Penalties : 
 
 civil action to recover 97-98 
 
 Persons liable for violating law 94 
 
 Persons to whom liquors cannot be legally sold or given away 58-59 
 
 Petition : 
 
 for submission of local option questions 13-20 
 
 for rebate 46-48 
 
 for revocation of certificate 50-56 
 
 for injunction 56-58 
 
 Pharmacists : 
 
 right to seU liquors on Sunday 60 
 
 right to sell alcohol without physician's prescription 11 
 
 right to sell certain concoctions and preparations 6-7 
 
 Places where liquors cannot be legally sold 48-46 
 
•IAY17W2 
 
 Index. 101 
 
 LAW LIBRARj ,,,,. 
 
 Prohibited hours of traffic 11, 60-61 
 
 Eatio between population and number of subdivision one certificates . . 20-26 
 
 Rebate on liquor tax certificate 46-48 
 
 Registers in hotels 78 
 
 Revocation of liquor tax certificate 50-56 
 
 Saloons : 
 
 limitation of number of 20-26 
 
 (See also Screens; Prohibited hours; Gambling; Disorderly 
 premises, etc.) 
 
 Schoolhouse : 
 
 traffic within 200 feet of 44-46, 68-69 
 
 Screens, blinds, curtains, and stalls 73-75 
 
 Search for and seizure of liquors illegally stored 85-91 
 
 Special Deputy Commissioners of Excise: 
 
 their duties under the law 28 
 
 Sunday: 
 
 who may sell liquors on 60, 76-78 
 
 during what hours 60, 76-78 
 
 to whom liquors may be sold on 60, 76-78 
 
 Taxes. (See Excise taxes.) 
 
 Town clerk: 
 
 his duties under the law 13-20 
 
 Traffic in liquors: 
 
 what constitutes 7-10 
 
 Transfer of certificate : 
 
 from person to person 79 
 
 from place to place 70-71 
 
 from person to person and from place to place in one transaction. . 71-72 
 
 Void sale of liquors 90^91 
 
 Wagon: 
 
 traffic from a •. 11 
 
 Woman. (See Female.) 
 
 Note. — Classification of cities. 
 
 A city of the first class is one having a population of 175,000 or more. 
 
 A city of the second class is one having a population of 50,000 and less 
 
 than 175,000. 
 
 AH other cities are cities of the third class.